Shugerman on Blackstone, the Removal Power, and the Unitary Executive

Jed Handelsman Shugerman, Fordham Law School, has posted Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism, which is forthcoming in the Yale Journal of Law and the Humanities:

William Blackstone (NYPL)

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so?

Unitary executive theorists’ reliance on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them.

When one investigates the unitary evidence more closely and follows their sources, one
finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation. 

--Dan Ernst

Schwartz on Treanor on the Dishonest Scrivener

David S. Schwartz, University of Wisconsin Law School, has posted Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor's “Dishonest Scrivener,” which will also appear on Michigan Law Review Online:

Gouverneur Morris (NYPL)

Dean William Treanor's masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding. He uncovers a body of constitutional interpretations favored by advocates of a strong national government and emphasized by the Federalist party in the early decades of politics and policy under the Constitution, raising significant questions about present-day originalism in the process. Treanor particularly emphasizes how Constitutional Convention delegate Gouverneur Morris, acting as primary draftsman on the "Committee of Style" which put the finishing touches on the draft 'Constitution' crafted language favorable to Federalist interpretations. But Treanor disserves his otherwise compelling argument with a narrative that portrays Morris as a "dishonest scrivener" who "smuggled in" substantive revisions to impose his own views, presumably against the will of an inattentive Convention majority. This narrative framing 'not sustained by the available evidence' digresses from Treanor's core argument, and works against it. A better interpretation of the historical evidence is that the Committee of Style draft had broad support and made no substantive revisions that escaped the notice of the Convention. The fifteen revisions by the Committee of Style cited by Treanor do not support the charge of "dishonest scrivening." Ultimately, we can dismiss the 'dishonest scrivener' narrative, while recognizing Treanor's valuable, core insights that Morris was a key player at the Convention and that the Committee of Style reinforced Federalist understandings of the original Constitution. 

--Dan Ernst

Merkin's Legal History of Marine Insurance

Rob Merkin, University of Reading, has published Marine Insurance: A Legal History (Edward Elgar):

This authoritative work forms a comprehensive examination of the legal and historical context of marine insurance, providing a detailed overview of the events and factors leading to its codification in the Marine Insurance Act 1906. It investigates the development of the legal principles and case law that underpin the Act to reveal how successful this codification truly was, and to demonstrate how these historical precedents remain relevant to marine insurance law to this day.

Beginning with the pivotal year of 1756, Rob Merkin QC organises his analysis era by era, situating the leading cases and emerging fundamentals of the marine insurance industry in the context of external events such as war, the growth of free international trade, and the expansion of empire. Offering insight into the origins of familiar legal principles in the field, the book provides a deeper understanding of the legal framework within which historical events took place and how this shaped both the development of marine insurance law and the political and economic circumstances surrounding it.

–Dan Ernst

Weekend Roundup

• Kenneth Mack, Harvard Law School, reviews Until I Am Free: Fannie Lou Hamer's Enduring Message to America (Beacon Press), by Keisha N. Blain, in WaPo. 
  

• Samuel Evan Milner, Ph.D and a J.D. candidate at the University of Chicago Law School, will discuss his soon to be published book, Robbing Peter to Pay Paul: Power, Profits, and Productivity in Modern America (Yale University Press), with Todd Henderson and Eric Posner under the auspices of Chicago Law’s Center on Law and Finance on December 15, beginning at 12:15 pm Central Time.  The book treats “the history of corporate governance, oligopoly, and labor” and its implications for the present.  Register here.
  

• 
  New online from Law and History Review and Cambridge Core: Extraterritoriality and Legal Belonging in the Nineteenth-Century Mediterranean, by Jessica M. Marglin. 

• Florida has cleared the Groveland Four (Florida Courier).  See John Q. Barrett's substantial post on the case to The Jackson List.
  

• ICYMI:  Stanford Law's notice of ASLH fellowships for Lawrence Friedman and Robert W. Gordon.  Sarah Seo calls for removing police from traffic law enforcement (Harvard Gazette).  Trust the Teachers, says David W. Blight (The Atlantic).
  

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

Grisel's "Limits of Private Governance"

Florian Grisel, Associate Professor of Socio-Legal Studies at the Centre for Socio-Legal Studies, University of Oxford, has published The Limits of Private Governance: Norms and Rules in a Mediterranean Fishery (Bloomsbury):

Is there a future for the law? In this book, Florian Grisel addresses one of the most fascinating questions raised by social scientists in the past few decades. Since the 1980s, socio-legal scholars have argued that governance based on social norms (or “private governance”) can offer an alternative to regulation by the law. On this account, private governance could be socially efficient and even optimal compared with other modes of governance.

The Limits of Private Governance supplements this optimistic analysis of private governance by assessing the long-term evolution of a private order in the fishery of Marseille. In the last eight centuries, the fishers of Marseille have regulated their community without apparent means of legal support from the French state. In the early 15th century, they even created an organisation called the Prud'homie de Pêche in order to regulate their fishery.

Based on archival evidence, interviews and ethnographic data, Grisel examines the evolution of the Prud'homie de Pêche and argues that the strong social norms in which it is embedded are not only powerful tools of governance, but also forces of inertia that have constrained its regulatory action.

The lessons drawn from this book will appeal to academics, policy-makers and members of the general public who have an interest in the governance of our modern societies.

–Dan Ernst

ASLH "projects & proposals" funds to Dayton, Jagodinsky

Continuing our announcements of the happenings at the recent ASLH meeting, we now announce two recipients of funds from the Society’s Projects and Proposals Committee:

The Wheatley Peters Project, proposed by Cornelia Dayton, is an excellent, well-conceived and ambitious project that has already garnered positive attention upon its initial preliminary launch. It aims not only to make important historical documents available to a wider public but also to showcase historians’ methods of using such research in their work. It will provide transcriptions, interpretations and interactive commentary on key archival material related to the lives of Phyllis Wheatley, her husband John Peters, and other Black Americans during the eighteenth century. ASLH funding will help establish the site as a model of digital engagement and may help attract additional resources to the project.

The Digital Legal Studies Forum, proposed by Katrina Jagodinsky, encourages excellence in digital history by bringing together established and junior scholars in a productive and thoughtful way. As the proposal states, Forum organizers “aim to bring talented new voices into the field, promote novel forms of scholarly interchange, and to seed new forms and venues for public history.” The event, a project of the Center for Digital Research in the Humanities at the University of Nebraska Lincoln, will draw dozens of historians, archivists, and scholars from around the West and Midwest, putting them in productive conversation with their peers, while also engaging new work that uses digital legal projects to explore issues pertaining to slavery reparations and treaty reconciliation. ASLH funding will provide needed financial support to make the forum a success.

Congratulations to Professor Dayton and Professor Jagodinsky! We look forward to seeing the results of these exciting projects.

-- Karen Tani

ASLH Craig Joyce Medal to Gordon

Occasionally the American Society for Legal History awards a very special honor: the Craig Joyce Medal. The ASLH website explains:

The Society depends on the volunteer labors of its members. It is fortunate in the number of its members who are willing to join in the business of the Society, which is to foster scholarship and teaching in the broad field of legal history. Each year well over a hundred names appear on this website on the lists of officers, directors, and committee members. Among that number, a few people contribute their time to the Society over many years in ways that are above and beyond the call of duty, even in an organization whose members have a strong sense of duty. The Craig Joyce Medal recognizes those individuals. It is awarded on an occasional basis to acknowledge and honor extraordinary and sustained volunteer service to the Society. The medal was first awarded, fittingly, to Craig Joyce, the Andrews Kurth Professor of Law at the University of Houston, in whose honor the ASLH Board of Directors created the award.

At this year's meeting of the ASLH, this medal was awarded to Sarah ("Sally") Barringer Gordon (University of Pennsylvania). Ray Solomon generously allowed us to post the remarks he read at the luncheon:

Sally Gordon (credit)

All of us know, the ASLH depends on the volunteer labors of its members. Over the years our Society has grown and flourished because of the countless hours of work our members put in to ensure that the intellectual life of the field is vibrant, the annual meeting is superb, the membership grows nationally and internationally, the website and blog have interesting and informative content, and we are well-managed and financially secure. Each year well over a hundred names appear in the program on the lists of officers, directors, and committee members. Among that number, a few people contribute their time to the Society over many years in ways that are above and beyond the call of duty, even in an organization whose members have a strong sense of duty. The Craig Joyce Medal recognizes those individuals. It is awarded on an occasional basis to acknowledge and honor extraordinary and sustained volunteer service to the Society, as Craig himself exemplified for so many years. It has been awarded to some officers for their service, but not to any presidents. In my many years as a member I can honestly say that every president since Herb Johnson (he was the first I knew) certainly worked tirelessly to make the Society stronger and better than when they came to office. While they each deserved recognition for that service, the Joyce medal was not designed to do that. However, President Benton has used her discretion wisely to make an exception. I am pleased to announce that this year the Joyce Medal is awarded to our immediate past-president, Sarah Barringer Gordon – or as she is known to all of us --- Sally, who is a most accomplished scholar and the Arlin M. Adams Professor of Constitutional Law and Professor of History at The University of Pennsylvania.

More than any other single person Sally has been the impetus behind the transformation of the Society over the past two decades into an efficiently running, financially stable, programmatically dynamic learned society. I first began to work closely with Sally when her supposed cousin, Bob Gordon, asked us to be part of the Society’s Fund for the Future campaign. Sally’s leadership as chair enabled us to secure our first real endowment, which enabled us to create the Projects & Proposals Committee and began to support important new projects that featured younger scholars and brought new scholars into the Society from other fields. When our financial infrastructure was in total disarray, Sally stepped in and retrieved the records that enabled Craig Klafter to work his magic, and she oversaw the Finance and Investment Committee. And when we needed to figure out how to keep the Hurst Program going, she was there to lead the effort to contact former students to honor their mentors and endow the Program. It was also Sally who brought Wally Johnson to the Society and successfully pitched the idea of a first-book program, which has proven to be a unique opportunity to help young scholars and should become a model for other learned societies to follow. Sally also modernized the administration of the Society --- getting control over how membership is handled, rewriting our bylaws, and increasing the content and design of our website. Of course, in all of these many critical projects Sally had amazing assistance, but always she was the driving force.

And I have yet to mention that for almost a dozen years she has been an editor of the Society’s Studies in Legal History with the University of Cambridge Press, the preeminent series in the field. In that role she has read countless manuscripts and worked with authors to improve their manuscripts and has diversified the geographical coverage of work in the Series, as well as bringing different voices to the conversations in the field. She has even hawked books in the display room at our annual meeting.

And I have yet to mention that Sally has been for twenty years a director of the William Nelson Cromwell Foundation where she has led the efforts to vastly expand the Foundation’s support for the field and the Society. Most notably many members have benefited from the dissertation, article and book prizes the Foundation funds.

And I won’t mention the more than half dozen committees Sally has chaired or served on during her 30 years as a member of the Society.

I have been accused many times of knowing a lot of people, but I’m an amateur compared to Sally, who is the pro. Her smiling presence and humor have welcomed and promoted a generation of young scholars to the field and the Society. These include many from her alma maters of Yale and Princeton, those she has mentored at Penn, those she has taught at the Hurst and the Johnson Programs, as well as those whom she has met at our conferences and annual meetings.

In sum the American Society for Legal History and our field is as strong as it is today in large part because of the work of Sally Gordon. For that and more she is a worthy recipient of the Craig Joyce Medal.

Congratulations and thank you to Professor Gordon!

-- Karen Tani

Northeastern Asian American Studies Job

 [We share the following job announcement.]

Open Rank Cluster Hire – Assistant/Associate/Full Professor of Asian American Studies

The College of Social Sciences and Humanities (CSSH) at Northeastern University seeks nominations and applications from scholars for multiple openings in Asian American Studies, with an expected start date of Fall 2022. Appointments will be made at the rank of Assistant Professor, Associate Professor with tenure, or Full Professor with tenure. Successful candidates will have a distinguished scholarly record and demonstrated potential for excellence in teaching and leadership. This multi-position search is open to applicants with a Ph.D. from disciplines in the social sciences and humanities, and we especially welcome scholarly expertise in any of the following: law, governance, and social justice; migration and diaspora; critical technology studies; health humanities; political economy; literature, art, and social movements; visual studies; Native Hawaiian and Pacific Islander Studies; public and/or digital humanities.

Successful candidates will have a partial appointment in the Asian Studies Program and have a tenure home in an appropriate department in the College of Social Sciences and Humanities or in the University. Candidates may have a cross-college appointment with the College of Arts, Media and Design (CAMD), if appropriate, or may affiliate with one of our research centers dedicated to work at the nexus of race and social justice, including the Boston Area Research Initiative; the NULab for Texts, Maps, and Networks; or the Institute on Race and Justice.

Applicants will be asked to indicate their discipline or field on the online application form. Applications should include a cover letter that addresses the applicant’s interest in and qualifications for the position, curriculum vitae, evidence of teaching effectiveness, research statement, writing sample, and contact information for at least three letters of recommendation.

To apply, please go to http://www.northeastern.edu/cssh/faculty-p and click on the link for full-time positions or full-time interdisciplinary positions or if viewing this description on the Northeastern University website, click “Apply to this job.” Please address nominations and inquiries about the position to Professor Philip Thai, Chair of the Asian American Studies Search Committee, at p.thai@northeastern.edu. Review of applications or nominations will begin December 15, 2021 and will continue until the position is filled.

--Mitra Sharafi

Preyer Awards to Maor, Arcadi

The ASLH's Kathryn T. Preyer Award recognizes excellent scholarship by junior scholars:

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to early career legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. 

This year's awardees are Naama Maor (University of Chicago) and Teal Arcadi (Princeton University). The citations:

Naama Maor for In Search of the “Real Culprits”: The Adult Delinquent in a Progressive Era Juvenile Court

In her elegantly written and deeply researched paper, Naama Maor analyzes previously unexplored cases against adult defendants in the trailblazing Denver Juvenile Court between 1907 and 1927. Maor finds that the court’s reliance on a new, capacious, and ambiguous category of offenses – contributing to the delinquency of a child – facilitated enforcement that both reflected and shaped gendered ideas about age, consent, and criminal liability for the acts of another. In pursuing cases against adults through children, judges, probation officers, and district attorneys invested great power in the hands of the same children the law deemed inculpable due to their age. The paper persuasively shows that in their rush to try these cases, state officials inadvertently gave rise to a potent opposition to the court’s jurisdiction, which challenged the assertion that adults could receive a fair trial in a juvenile court.

Teal Arcadi for Concrete Leviathan: Interstate Highway Litigation and the Clash of Experts and  Citizens in Modern America

Teal Arcadi explores how the construction of the National System of Interstate and Defense Highways prompted protests and litigation that reformed administrative law and modern American governance from the 1960s onward. His paper explains that when interstate construction began in the late 1950s, it became synonymous with destruction of neighborhoods and parks bulldozed to make way for the “concrete monsters,” as some came to call the interstate highways. “Freeway revolts” erupted in the nation’s cities, with participants demanding altered construction practices that gave citizens and communities more say in the state building process underway. While cultural and urban historians have recounted these uprisings, their legal and governmental impact warrants further treatment, which Arcadi ably provides. Arcadi advances three important and compelling arguments. First, the freeway revolts have a broader governmental history that elucidates the long-simmering and cross-partisan tension between administrative authority and participatory democracy that boiled over after the New Deal. Second, the freeway revolts brought distinctive reforms to the practices of modern American state building, particularly in leading to the canonical Supreme Court case Citizens to Preserve Overton Park v. Volpe in 1971. Third, despite the reformist inclinations present in Overton Park, the case produced an uneven legal and physical landscape of state building. Ultimately, the paper identifies the emergence of a legal context that prioritized the protection of open spaces at the expense of poor and minority urban communities.

Congratulations to Naama Maor and Teal Arcadi!

-- Karen Tani

John Phillip Reid Book Award to de la Fuente & Gross for "Becoming Free, Becoming Black"

The American Society for Legal History awards the John Phillip Reid Book Award "for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history." This year's winner is the co-author team Alejandro de la Fuente (Harvard University) and Ariela J. Gross (University of Southern California) for Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (Cambridge University Press, 2020). The citation:

Entering into a terrain of longstanding scholarly debate, Alejandro de la Fuente and Ariela Gross’s Becoming Free, Becoming Back (Cambridge University Press, 2020) traces the winding path from black slavery to black citizenship in Cuba, Louisiana, and Virginia. It avoids traditional claims of moral superiority for Latin American systems of bondage. Instead, it shows how in all three societies race became a cornerstone for constructing the normative logic of slavery. With remarkable nuance, their book underscores the ways Iberian legal customs of manumission did make a difference by allowing for the creation of a free black population. Beautifully written, thoroughly researched, and persuasively argued, it impressively deploys cultural history— emphasizing context and contingency—to undermine the seeming historical inevitability of citizenship becoming closely intertwined with whiteness. This is comparative history at its finest.

Congratulations to both authors!

-- Karen Tani

Brauneis on Fine Art and the Copyright Act of 1870

Robert Brauneis, George Washington University Law School, has posted Understanding Copyright's First Encounter With the Fine Arts: A Look at the Legislative History of the Copyright Act of 1870, which appeared in the Case Western Reserve Law Review 71 (2020):

In 1870, Congress made its single largest addition of categories of copyrightable subject matter, expanding copyright protection to cover “painting[s], drawing[s], chromo[s], statue[s], statuary, and . . . models or designs intended to be perfected as works of the fine arts.” For the first time, it included works not designed or intended to be created and distributed in multiple copies, and it aligned copyright with the “fine arts” as opposed to the “mechanical arts,” a revision of the earlier understanding that copyright would cover “Science” as opposed to the “Useful Arts.” Why did Congress so act?

A thorough examination of the legislative history of the 1870 Act, and associated historical documents, leads to the following conclusions. First, artists sought protection for paintings and drawings in part to ensure enforceable exclusive rights for prints as the industrial organization of print production changed. Second, the drive for protection of paintings and drawings was also motivated by advances in reprographic technology, particularly color lithography. Third, expansion of an existing scheme of protection is politically easier than creating a new scheme of protection and negotiating all of the dimensions from scratch. Fourth, artists became better organized in associations like the National Academy of Design, and art publishers became substantial industrial ventures that employed dozens of workers in large factories, which increased their political visibility and power. Fifth, the proponents of expansion faced no organized opposition. Sixth, the 1870 Act’s expansion had few ties or references to earlier English expansion, reflecting the increasing independence of US legal culture from English legal culture after the Civil War.

--Dan Ernst

Stein book award to Chatterjee for "Negotiating Mughal Law"

Continuing our tradition of posting the prize winners from this year's ASLH meeting, we now celebrate Nandini Chatterjee (University of Exeter). Her book Negotiating Mughal Law: A Family of Landlords Across Three Indian Empires (Cambridge University Press, 2020) won the Peter Gonville Stein Book Award. The Stein Book Award recognizes "the best book in non-US legal history written in English" and "is designed to recognize and encourage the further growth of fine work in legal history that focuses on all regions outside the United States, as well as global and international history" The citation:

Negotiating Mughal Law is a wonderful combination of philology, imagination, archive sleuthing, and sharp intelligence. Based on a painstakingly collected set of documents in a few languages from a society that lacked a centralized legal archive, it is a micro-history of a family of landlords in central India over several centuries. Chatterjee provides a rich narrative of law as put into practice in the daily lives of a wide range of people. Her attention to methodology is a model of the care and self-criticism that underlies the very best historical research, and for this reason the book is of great value beyond its specific geographical and temporal context.

An Honorable Mention went to recent guest blogger Samuel Fury Childs Daly for A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020).

Congratulations to both authors!

-- Karen Tani

Weekend Roundup

• We were very sorry to learn of the death earlier this month of the medievalist James A. Brundage, Ahmanson-Murphy Distinguished Professor of Medieval History Emeritus at the University of Kansas.  His books include The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (2008); The Practice and Profession of Medieval Canon Law (2004); and Law, Sex, and Christian Society in Medieval Europe (1987).  As the condolences here show, he was deeply respected by many legal historians.
  

• Garland’s Million: The Tragedy and Triumph of Legal History, John Fabian Witt’s plenary address at the recent annual meeting of the American Society for Legal History is now available online.  Highly recommended!
  

• 
  Just in time for Native American Heritage Month, the latest issue of the Texas Supreme Court Historical Society Journal has been published here.  According to John Browning, a former judge and current Editor-in-Chief, the issue “has a special focus on Native American legal history in Texas,” including articles on “NAGRA, an 1871 trial of Native American combatants in a Texas criminal court, the search for Texas’ first Native American lawyer, a profile of Texas’ first Native American federal judge, and much more.” 
  

• The editors of the Bluebook have adopted Rule 10.7.1(d), which directs that when citing cases in which an enslaved person was a party, authors should include the parenthetical “(enslaved party).”  In cases in which an enslaved person was the subject of the dispute but not a named party, authors are to use the parenthetical “(enslaved person at issue)" (CM Law Library Blog).  The change is in response to the Citing Slavery Project, headed up by Justin Simard, Michigan State University College of Law.  H/t: JLG. 
  

• ICYMI: “The Supreme Court of Georgia will celebrate its 175th anniversary in December with two events to highlight its history and impact on the state" (The Law).  "Plessy v. Ferguson aimed to end segregation—but codified it instead" (National Geographic).  More on YLS professor Vicki Schultz's seminar on “the early work done by lawyers in the United States Department of Justice Civil Rights Division Employment and Litigation Section” (Yale Daily News).  A 53-year-old billionaire outbid a group of crypto-investors and bought a copy of the U.S. Constitution for $43 million (WSJ).
  

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

Loeffler on the UDHR, the Genocide Convention, and the 1948 Israeli-Arab War

James Loeffler, University of Virginia, has published Three days in December: Jewish human rights between the United Nations and the middle east in 1948, in the Journal of Global History (2021), 1–19:

The twin birth of the UN Universal Declaration of Human Rights and the UN Genocide Convention in 1948 have received enormous scholarly attention in recent years. Yet historians have largely ignored how these legal projects intersected with that year’s war in Israel/Palestine. In this article, I push these two stories back into a single frame by examining the year-long efforts of one early human rights organization, the World Jewish Congress, to advance rights-claims on behalf of Middle Eastern Jewish communities imperiled by the regional repercussions of the war. The WJC’s record of activities affords us a direct window into contemporaneous activist understandings of the ties between the Holocaust and the Nakba, human rights and genocide, and international law and politics. More broadly, it reveals the intrinsic limits of early human rights advocacy in an emerging global system exclusively structured around nation states.

–Dan Ernst

Fletcher on Pandemics in Indian Country

Matthew L. M. Fletcher, Michigan State University College of Law, has posted Pandemics in Indian Country: The Making of the Tribal State, which is forthcoming in the University of St. Thomas Law Journal:

This Essay is inspired by the fascinating narrative told by John Fabian Witt theorizing how epidemics make states and how states can also make epidemics. The two stories centered in Peshawbestown, Michigan of the 1881 smallpox outbreak and the 2020-2021 COVID-19 pandemic seems to play into that story. The state (acting through the local and federal government) made the 1881 outbreak fatal, while the epidemic (acting through the tribal and federal government) made the state (in this case, the tribe) in 2020-2021. The story here seems to be one of sovereignty. In the smallpox era, the tribes exercised almost no sovereignty. Now they are practically self-governing; the incredible success of the Grand Traverse Band is a ringing endorsement. The tribe is acting like a capable and responsive government. But I argue there is more going on here. Sovereignty – whether liberal or authoritarian, in Witt’s words – is the first step in the analysis, but not the last. Culture is the second step. 

This Essay intends to gently disrupt Professor Witt’s theory by superimposing Anishinaabe political theory on American Contagions. The very notion of sovereignty is foreign to Anishinaabe. Western political theory insists on the power of a sovereign entity to enforce a social contract or else society will collapse. Anishinaabe political theory does not. The difference matters.

--Dan Ernst

CFP: Asian Legal History Conference

 [We have the following announcement and call for abstracts.  DRE]

The Faculty of Law, Thammasat University, in partnership with the NUS Centre for Asian Legal Studies, is pleased to announce that it will be hosting the 2nd Asian Legal History Conference on 23-24 July 2022. This Conference, convened by the Asian Legal History Association, aims to provide an opportunity for scholars, researchers and students to share their findings on the topic of legal history in Asia. The Conference will involve the discussion of key issues and developments in Asian legal history with leading scholars as keynote speakers and panelists. In addition to the Conference, the Young Legal History Scholars Workshop will be conducted and open for registration for those in their early legal historian careers who are seeking to hone their skills with the guidance of experts in the field.

We look forward to your participation in the Conference.

Call for Abstracts.  In light of the 2nd Asian Legal History Conference, we invite you to submit an abstract on any subject under the general theme of "legal history in Asia." The length of the abstract should be between 100-250 words. The submission deadline is 14 January 2022. Authors who have been chosen to present their abstracts will be contacted on 28 January 2022.  To make a submission and find out more about the Conference, please visit the website. For inquiries, please contact alha.contact@gmail.com.

We look forward to your submissions and contributions to the study of Asian legal history.

Cetin on Turkey's First Woman Lawyer

Sevgi Çetin has posted Trailblazers III: Süreyya Agaoglu the First Woman Lawyer of Turkey:

In 1927, Süreyya Agaoglu became the first woman lawyer of Turkey. She had to force the doors of the Law School of the ancient Ottoman Empire. Because in its religious and tradition-based court system and laws, there was no place for a woman lawyer. According to the Mecelle, (the Ottoman civil and procedural code) ''In civil cases, evidence is only valid when given by two males, or one male and two females, but in places where males cannot be possessed of the necessary information, the evidence of females alone will be accepted in respect of the property.'' In a legal system, women were not excepted as witnesses, it would be impossible to give them the authority of a lawyer. While she was a student at the university, the old Ottoman Empire with its laws and institutions withdrawn from the stage of history. The young Republic of Turkey opened the doors of the legal profession to women. Agaoglu and her friends led the way, and today women consist the half of lawyers

--Dan Ernst

Kadens on a 1613 Star Chamber Fraud Case

Emily Kadens, Northwestern University School of Law, has posted A Marine Insurance Fraud in the Star Chamber, which appears in Star Chamber Matters: The Court and Its Records, ed. K.J. Kesselring and Natalie Mears (2021), 155-174:

The Star Chamber was an active forum for litigating cases of fraud in the sixteenth and early seventeenth centuries. But some complaints alleging fraud were themselves fraudulent. This book chapter provides a detailed study of a 1613 Star Chamber suit claiming marine insurance fraud against London- and Amsterdam-based merchant insurers, which was allegedly committed in Livorno, Italy by two Portuguese crypto-Jews and a young English merchant. But did the fraud actually occur, or did the accuser invent the whole story?

--Dan Ernst

Sutherland Prize to Saksena and Tycko

Another prize announcement from this year's meeting of the American Society for Legal History: the Sutherland Prize ("awarded annually . . . to the person or persons who wrote the best article on the legal history of Britain and/or the British Empire published in the previous year") went to two authors this year. Priyasha Saksena (University of Leeds) and Sonia Tycko (University of Oxford) will share the award for their respective articles “Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia” Law and History Review 38, no. 2 (May 2020) and “The Legality of Prisoner of War Labour in England, 1648-1655,” Past and Present 246 (Feb 2020). 

The citations:

Priyasha Saksena’s erudite, thoughtful, and well-written article offers a provocative reevaluation of the role international law and especially debates over the nature of sovereignty in controversies over the legal status of princely states in post-1858 colonial India. Tracing competing arguments as they migrated from European treatises on international law to the Political Department of the Government of India as well as the nominally independent states of Baroda and Travancore, Saksena shows how British Indian policymakers adapted pluralist conceptions of divisible sovereign power to support expanding claims over nominally independent South Asian states, while advocates for the princely states responded with equally compelling legal and political arguments that defended their autonomy by privileging an understanding of sovereignty as singular and territorial. In so doing, this article challenges some longstanding and fundamental assumptions about the relationship between modern state sovereignty, discourses of “civilizational” difference, and colonial rule. It also makes a nuanced and powerful case for understanding leaders of princely states—and their legal advocates—not as “collaborators” with British rule but rather as engaged in active if sometimes subtle resistance to it. The article concludes by gesturing to how these conflicts in late nineteenth-century India traveled, serving as precedent for analogous, if distinct, colonial situations across the globe, especially Africa. Thus, in shedding light on the relatively understudied world of late nineteenth- century princely states, Saksena presents readers with a compelling argument and method for bringing the exciting and growing fields of South Asian, imperial, and global and international legal histories into a single frame.

Bringing us back two centuries and across a hemisphere, Sonia Tycko’s meticulously researched and methodically argued article excavates the legal acrobatics that allowed for foreign, especially Dutch and Scottish, soldiers captured by English forces in the mid-seventeenth century to be forced to serve as labor on projects ranging from the drainage of the fens to Caribbean plantations. The Council of State and various private interests saw multiple opportunities in putting prisoners of war to work but were stymied by strictures in the laws of war and jus gentium on the rights of such prisoners, especially prohibitions on enslaving fellow Christians. A bizarrely effective solution was found in reimagining the legal status of such prisoners not as conscripts but rather as akin to convicts and vagrants, offering a precedent for in turn making them an offer they could not refuse to enter into contracts, effectively rendering them legally “free” rather than forced labor. In closely tracking this development, Tycko shows how a population largely consigned to an historiographical footnote in the general story of indentured labor was not only critical to understanding the malleable nature of legal status in the seventeenth-century but also profoundly troubling to our understandings of the critical legal concepts of contract and consent. The article also impressively traces how these arguments developed and were contested among various different actors and interests, offering a creative and original model for linking domestic, international, and Atlantic history—not to mention social, labor, colonial, military, and carceral histories—through the history of legal thought and practice.

Congratulations to Professor Saksena and Professor Tycko!

-- Karen Tani 

Dudziak Digital Legal History Prize to Land-Grab Universities

Another announcement from this year's meeting of the American Society for Legal History: the winner of this year's Mary L. Dudziak Digital Legal History Prize went to Land-Grab Universities. An award that is close to our hearts here at the blog, the Dudziak Prize is "named in honor of Mary L. Dudziak, a leading scholar of twentieth century U.S. legal history and international relations as well as a digital history pioneer" and "is awarded annually to an outstanding digital legal history project." The citation:

Land-Grab Universities (https://www.landgrabu.org/) a remarkable project led by Dr. Robert Lee, Lecturer in American History and Fellow of Selwyn College, Cambridge University who put together an interdisciplinary team that included a journalist (Tristan Ahtone), a data visualizer (George McGhee), a web designer (Cody Leff), a cartographer (Margaret Peace), and a photographer (Kalen Goodluck). The website’s powerful visualization of expropriated Indigenous land has garnered international attention and spurred historical investigations at many of the 52 universities, such as Cornell University, that were built on and with Indigenous land acquired as a result of The Morrill Act, which President Lincoln signed into law in 1862. The quality of the website, coupled with the project’s commitment to sharing its data and computational programs via a GitHub repository are the distinguishing features of this project, as is its mission to use historical investigation to spur educational change. The project seeks to increase the number of Indigenous students enrolled at the 52 universities that benefitted from this historical process of dispossession. Overall, Land-Grab Universities brilliantly combines original research, computational method, and sophisticated data visualization to make its scholarly and social impact. 

Congratulations to Dr. Robert Lee and the rest of the team behind Land-Grab Universities! 

-- Karen Tani

Talking Legal History: Barbas on Morris Ernst

Talking Legal History, the podcast hosted by Siobhan M. M. Barco, a former litigator and current doctoral student in history at Princeton University, is out with a new episode.  Barco speaks with Samatha Barbas, University at Buffalo School of Law, about her new book, The Rise and Fall of Morris Ernst: Free Speech Renegade (University of Chicago Press, 2021).  "In the 1930s and ’40s, Morris Ernst was one of America’s best-known liberal lawyers. The ACLU’s general counsel for decades, Ernst was renowned for his audacious fights against artistic censorship. Arriving at a moment when issues of privacy, artistic freedom, and personal expression are freshly relevant, [Barbas's book] brings this singularly complex figure into a timely new light."

--Dan Ernst (no relation)

Sudai on sex ambiguity in early modern common law

Mayaan Sudai (University of Haifa) has published "Sex Ambiguity in Early Modern Common Law (1629-1787)" in Law & Social Inquiry (2021), 1-36. Here's the abstract: 

Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.

Further information is available here.

-- Mitra Sharafi 

 

Mohr on Religious Minorities in the Irish Free State

It’s open access, for now: Thomas Mohr, School of Law, University College Dublin, has published  Religious Minorities under the Constitution of the Irish Free State, 1922–1937, online in the American Journal of Legal History:

The Irish Free State came into existence in 1922 as a self-governing state with a substantial Catholic majority. This article examines the special constitutional provisions adopted in 1922 that were aimed at religious minorities in the new state. The Protestant community comprised the largest religious minority in 1922 and was particularly vulnerable as many of its members had opposed the foundation of the Irish Free State. Nevertheless, this article recognizes the diversity behind the term ‘Protestant’ and also provides some attention to the position of the Quaker community, often perceived in Ireland as neither Catholic or Protestant, as well as that of the small Irish Jewish community. This article examines the origins and operation of the special provisions of the 1922 constitution of the Irish Free State aimed at protecting the rights of religious minorities and giving them a significant voice within the Irish legislature. It also analyses how and why most of these constitutional safeguards were removed from the text of the 1922 constitution. Most of these provisions were not replicated in the 1937 constitution of Ireland that remains in force to this day. The conclusion argues that one of the weaknesses of the constitutional provisions aimed at religious minorities was that they did not openly include this objective in their wording. This facilitated the removal of almost all of these provisions in the 1930s while ignoring or openly denying that they were aimed at religious minorities despite ample historical evidence to the contrary.

--Dan Ernst

Robert Morris: Civil Rights Lawyer and Antislavery Activist

Robert Morris: Civil Rights Lawyer and Antislavery Activist, a website on “the country’s second African-American lawyer” recently went online at Boston College Law.  From the BC Legal Eagle blog:

Morris was admitted to the Massachusetts bar in 1847. One year later, when he was around 23, Morris was hired by Benjamin Roberts to handle a school desegregation case on his daughter Sarah's behalf. Five-year-old Sarah had been kicked out of the all-White school closest to her home and forced to attend a segregated, underfunded school for students of color known as the Abiel Smith School on Beacon Hill. Morris filed a lawsuit aimed at desegregating Boston's public schools. After a loss before the trial court, Morris and future U.S. senator from Massachusetts Charles Sumner worked together on the appeal. Their arguments (which anticipated those made in Brown v. Board of Education) were unfortunately rejected by the SJC. However, continued activism by Morris and other community organizers led to the Massachusetts legislature enacting an 1855 statute that desegregated public schools.
 
He was known as "the Irish Lawyer" for his regular representation of Irish immigrants. Morris grew up Methodist but ultimately followed his wife Catharine in converting to Catholicism. Due to these interactions with Boston's Irish Catholic community, he had strong connections to Boston College, which was founded in 1863 and originally located downtown in Boston's South End. One source suggests that he gave a $20,000 donation to build the Church of the Immaculate Conception, the Jesuit church that was administratively intertwined with Boston College in its earliest days. Around the time of Morris's death in 1882, he or his wife Catharine donated many, if not all, of the books in his personal library to Boston College, forming the school's foundational collection in English and American Literature. The surviving books are now held by the Burns Library on main campus and were the subject of a 2017 exhibit in the Law Library's Daniel R. Coquillette Rare Book Room.

The website is the work of "BC Law Legal Information Librarian Laurel Davis, Professor Mary Sarah Bilder, Digital Initiatives & Scholarly Communication Librarian Nick Szydlowski (now at San José State University), and Digital Initiatives & Scholarly Communication Specialist Abraham (Avi) Bauer."

--Dan Ernst

Cromwell Dissertation Prize to Penick

Continuing our recap of the prizes and awards announced at the recent meeting of the American Society for Legal History, we now turn to the William Nelson Cromwell Foundation Dissertation Prize. The prize is "awarded annually to the best dissertation in any area of American legal history, including constitutional and comparative studies, although topics dealing with the colonial and early national periods will receive some preference." This year's winner is Alyssa G. Penick (Ph.D., University of Michigan), for “The Churches of Our Government: Parishes, Property, and Power in the Colonial and Early National Chesapeake." The citation:

In a beautifully rendered and sweeping dissertation, “The Churches of Our Government: Parishes, Property, and Power in the Colonial and Early National Chesapeake,” Alyssa G. Penick tells a revisionist history of disestablishment—how “the legal concept of an establishment of religion evolved from dismantling the established church.” This ambitious dissertation covers a century spanning the late colonial period through the early republic while homing in on specific localities to reveal the myriad ways the Anglican church stood at the center of civic life. Employing an expansive understanding of religious influence, Penick demonstrates the role of statutory and common law in maintaining the church’s powers. Her insightful writing brings alive how the church engaged in everything from policing the public good, to meting out social welfare, to executing law. The manner of disestablishment determined the degree to which it would continue to do so. Disestablishment, Penick insists, was a fundamentally “material process.” Methodologically creative and deeply grounded in archival materials, the dissertation details the church’s substantial wealth, garnered not only through glebes but also through other types of real property, taxation, and enslaved persons. The key to maintaining this wealth, Penick contends, was a common law corporate status: “Vestrymen and church wardens came and went, but parishes existed in perpetuity as corporate entities.” Revolutionaries inverted the meaning of “establishment,” from enforcing orthodoxy, to a new sense of “using state power to protect religious freedom.” That new meaning, in turn, elicited different state-level responses, which Penick brilliantly teases out through a comparison of how Virginia and Maryland, neighbors with distinct patterns of church property-holding, translated the abstract idea of “disestablishment” into concrete legislation with real-world consequences. Disestablishment thus not only changed the structure of the church, it also rearranged the material landscape, loosening church control of white people’s moral conduct while tightening surveillance of the poor and free Black people and changing property relations and social welfare programs. By challenging common individual-rights narratives of religious freedom, this provocative and inventive dissertation gives us a new history of disestablishment but it also provides intellectual grist for our own times. 

Congratulations to Alyssa Penick!

-- Karen Tani

Nominate Honorary Fellows of the ASLH

[We have the following announcement.  DRE.]

The Honors Committee of the American Society for Legal History solicits nominations of senior scholars for consideration for election as Honorary Fellows of the Society.  Election as Honorary Fellow is the highest honor the Society can confer.  It recognizes distinguished historians whose scholarship has shaped the broad discipline of legal history and influenced the work of others.  Honorary Fellows are the scholars we admire, whom we aspire to emulate, and on whose shoulders we stand.  The Society seeks to recognize scholars who are not simply distinguished in their fields, but who also have given back to the discipline and made their fields stronger by creating communities of scholars and scholarship and by helping other (often younger) scholars to stand on their shoulders.  In other words, scholars who are as committed to building a future for their fields as they are to studying the past.  Commensurate with the growing international reach of the Society, we seek nominations of senior scholars who, collectively, similarly encompass the wide scope of scholarship in legal history.

Nominations should be submitted to Bruce H. Mann, chair of the Honors Committee, by email (mann@law.harvard.edu) before January 1, 2022.  Each nomination should include a brief statement of why the nominee merits election.  A list of current and past honorary fellows is [here].

Weekend Roundup

• Oliver Wendell Holmes, Jr., to Louis D. Brandeis on "rounding the third corner," per Clare Cushman and the Supreme Court Historical Society. 
  

• The internet is abuzz about David Waldstreicher’s The Changing Same of U.S. History, a review of Gordon S. Wood’s Power and Liberty: Constitutionalism in the American Revolution, and Carol Anderson’s The Second: Race and Guns in a Fatally Unequal America (Boston Review).
  

• Next semester Vicki Schultz, Yale Law School, will teach the seminar “Living Civil Rights Law,” in which students will make FOIA requests and conduct interviews with former attorneys in DOJ’s Employment Litigation Section “in order to tell their stories and preserve the agency’s legacy. . . . In addition to publishing papers in an online forum, students may also disseminate their work and ideas through creative storytelling — in podcasts, videos, and blogs” (More).
  

• Randy Barnett, Georgetown Law, discusses his and Evan Bernick’s Original Meaning of the Fourteenth Amendment on the National Review’s Bookmonger podcast.
  

• Samantha Barbas discusses Morris Ernst in this Baldy Center (State University at Buffalo) podcast.
  

• And here’s another Baldy Center podcast: “From the heights of his long tenure at the University at Buffalo School of Law, . . . Distinguished Professor John Schlegel discusses US economic history, American Legal Realism, and his lived experience with legal education over the last half century, in particular, Critical Legal Studies. In this extemporaneous conversation, Del Cotto Professor David Westbrook affectionately provokes Schlegel to grapple with the necessary and complex ongoing negotiations between our concepts of adventure and stability, serious and fun, the endeavor of intellectual freedom... and the Borg.”
  

• A notice of the research of Ariel Nereson, a professor in Buffalo’s Department of Theatre and Dance, focuses her research on obscenity laws in the early twentieth century, including ‘Obscenity Law and the Problem of Performance: A Case Study of the Trial of Mae West's ‘The Pleasure Man’” (Baldy Center Magazine).
  

• Professor Emeritus Genna Rae McNeil, the author of Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights, delivered the 29th annual Stone Center lecture at UNC Chapel Hill (Daily Tar Heel).
  

• Bloomberg Law Podcasts interviews two legal historians on this term’s Supreme Court cases, Adam Winkler on the Second Amendment, and Mary Ziegler on reproductive rights.
  

• Save the date: Oxford University Faculty of Law announces a Book Talk for Thai Legal History (CUP, 2021), by Andrew Harding and Munin Pongsapan, February 25, 2022, 12:00PM to 1:00PM.
  

• New online from the American Journal of Legal History and Oxford Journals: Internment of Enemy Aliens during the World Wars, by Manuel Galvis Martínez, and Revolutionary Criminal Punishments: Treason, Mercy, and the American Revolution, by Mugambi Jouet.

•  “California’s first law school, the UC Hastings College of the Law, will change its name so it no longer references its founder, Serranus Clinton Hastings, who played a significant role in the mass killings of Indigenous people, the Los Angeles Times reports” (Daily Beast).
  

• ICYMI: A notice of Frances "Fay" Kyle and Averil Deverell, “the first women to be called to the bar in Ireland and Britain” (BBC News).  Why are medieval laws at the center of gun case? (Minnesota Lawyer).  Louisiana board votes to pardon Homer Plessy (NBC News).
  

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

The Berger Howe Fellowship

 [We have the following announcement.  DRE]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Fellowship for the academic year 2022-2023.  Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree. A J.D. is preferred, but not required.  The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined, as the fellow seeks to begin or establish an academic career in legal history.  There are no limitations as to geographical area or time period. With occasional exceptions, previous fellows have gone on to pursue faculty appointments or other fellowships in American universities.

Fellows are expected to spend the majority of their time on their own research. They also help coordinate the Harvard Law School Legal History Workshop, which meets four or five times each semester. Fellows are invited to present their own work at the colloquium. Fellows will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2022-2023 should submit their applications and supporting materials electronically to Professor Bruce H. Mann (mann@law.harvard.edu).

Each interested applicant should submit:
            • a detailed (five pages maximum) description of a proposed project,
            • a writing sample,
            • a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience, and
            • copies of official transcripts of all academic work done at the graduate level. The applicant should arrange for two academic references to be submitted electronically. The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is January 28, 2022, and announcement of the award will be made by February 28, 2022.  The fellow selected will receive a stipend of $38,000.

Harvard Law School selects individuals for fellowships without regard to race, color, religion, sex, national origin, disability status, protected veteran status, gender identity, sexual orientation, pregnancy and pregnancy-related conditions, or any other characteristic protected by law.

Links to additional information may be found here.

Cromwell Early Career Fellowship Recipients

UPDATE: A previously published version of this post contained incorrect information. We apologize for the error.

We recently posted notice of the winners of this year's Cromwell Book Prize and Cromwell Article Prize. The William Nelson Cromwell Foundation also generously makes available "a number of $5,000 fellowships to support research and writing in American legal history by early-career scholars." The recipients of this year's Cromwell Early Career Fellowships are:

Myisha Eatmon, Assistant Professor of History, University of South Carolina, for "Litigating in Black and White: Black Legal Culture, White Violence, Jim Crow, and Their Legacies."

Jessica Fletcher, Ph.D. candidate, Vanderbilt University, for "Before the Amistad: Cuba, Haiti, and Caribbean Political Consciousness in Early Nineteenth-Century US Freedom Suits."

Aden Knapp, Ph.D. candidate, Harvard University, for "Judging the World: The United States and International Courts, 1898–1971."

Benjamin Lyons, Ph.D., Columbia University, for "The Law of Nations & the Conduct of Early American Diplomacy."

Congratulations to all the fellowship recipients!

-- Karen Tani

A Symposium on Presidential Power at Syracuse Law

A symposium to celebrate the publication of David Driesen's The Specter of Dictatorship will be held on Friday, November 12, 2021, at the Syracuse University College of Law.  The first panel is “The Unitary Executive, Autocracy, and American History.”  Jed Shugerman, Fordham University School of Law; Jennifer Mascott, Antonin Scalia Law School, George Mason University; and Noah Rosenblum, New York University School of Law, will present.  Professor Shugerman’s paper is “The Bipartisan Enabling and En-Fabling of Presidential Power.”  The other panels are “The Supreme Court’s Embrace of Executive Power” and “Reforming Presidentialism: Comparative and Domestic Perspectives.”

Cromwell Book Prize to Walker for "Jamaica Ladies: Female Slaveholders and the Creation of Britain’s Atlantic Empire"

Continuing our coverage of the prizes and awards announced at this year's meeting of the ASLH, we now post notice of the winner of the William Nelson Cromwell Foundation Book Prize. This prize "is awarded annually to the best book in the field of American legal history by an early career scholar" and "is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured." The 2021 winner is Christine Walker (Yale-NUS College in Singapore), for Jamaica Ladies: Female Slaveholders and the Creation of Britain’s Atlantic Empire. The citation:

Published by the Omohundro Institute of Early American History and Culture and built upon painstaking and wide-ranging archival research across Britain, Jamaica, and the United States, Jamaica Ladies struck the committee as a tour de force. Walker focuses on free and freed women of European, Euro-African, and African descent who inhabited this island in the first century after it came under English rule and offers a complex,  multifaceted portrait of their activities as colonizers and slaveholders with the broader aim of exploring “the gendered dimensions of power” in the Anglo-Atlantic world. She examines Jamaica’s first century under English rule, as slavery expanding rapidly across the British Atlantic colonies, and her most compelling insights derive from a seemingly forgotten pile of testamentary devices housed in the Jamaican archives. It may be that Walker has analyzed every will penned by property-holding women in Jamaica during her period of study. The granularity of the lived experiences that Walker carefully pieces together from these terse and fragmentary legal records, as well as from a rich assortment of mercantile and personal correspondence, enables her to make a compelling case that these women were “handmaidens of empire.”

Walker thus challenges the conventional renderings of the British Caribbean as “a hypermasculine space,” and implicates its titular subjects in the building of Britain’s largest and wealthiest slaveholding colony. The activities of these Jamaica Ladies are surveyed in the first three intricately wrought chapters of the book, situated respectively in Port Royal, urban Kingston, and the plantations of the rural parishes. Transported to these colonial spaces, the reader finds free and freed women playing critical roles as proprietors and managers of plantations and businesses as well as households, forging links in imperial commercial networks and structuring everyday life in the colony’s ports and backcountry. In so doing, Walker makes indelibly clear, these propertied women both contributed to and profited from the exploitative extraction, brutal discipline, and deadly violence that marked this slave society. 

The complicated interplay between gender, race, sex, and power is even more brilliantly illuminated in a second set of  chapters which explore the socio-legal practices of inheritance bequests, nonmarital relationships, and manumission. Following the paper trails left behind by her historical subjects with an acute grasp of the legalities of colonial life, Walker vividly demonstrates the gendered nature of slaveholding – the distinctive dynamics, as well as the intimacies and animosities that developed between female enslavers and the men, women, and children they acquired as property and sometimes incorporated into their own families and wider kinship networks. The accumulated details of these everyday interactions between owners and captives add up to far more than the sum of their parts, persuasively illustrating how women’s possession of other people enhanced their own sovereignty, enabling them to command more wealth and independence than their counterparts in other parts of the British Empire. And yet the relatively autonomous actions of these female slaveholders did not always or only operate to strengthen the institution of slavery in the Anglo-Atlantic world. They also exposed strains and contradictions in the gender and racial hierarchies that were supposed to govern colonial life, strategically “creating loopholes for a select few to escape bondage” that threatened to “collapse the boundaries between enslavement and liberty.” In this way, Walker’s careful analysis of the role of women property holders helps reduce the historiographical division between studies of the West Indies and the rest of British America. Indeed, Walker’s analysis offers a model for rethinking who used law to build the empire, how they did so, and to what ends. 

In providing this provocative and persuasive account of the world these female slaveholders helped make, Walker makes a significant contribution to the field of American legal history. Though focused on a British colony that did not become part of the United States, her analysis of how women used wills and their management of property and households and the people in them sheds new light on the roles of law and gender in slaveholding society more generally. Skillfully tacking between legislative codes and surviving wills, inventories, deeds, and other documents that were not originally written for the benefit of historians, Walker exhibits a deep appreciation of what these paper records can and cannot tell us about the society within which they were created. The historical narrative she crafts from these materials is nothing short of revelatory, bringing to light the mixed motives, ideals, and interests that free and freed women brought to the work of building “a brave new world, one that hinged on relentless profit-seeking, coercive colonialism, and profound exploitation.” And because this is a past that is not even past, her book has much to teach us about the dilemmas of our own times

Congratulations to Professor Walker!

-- Karen Tani

Green on Indian Affairs & Admin Law/Rosser's "Nation Within"

Perhaps because I had the pleasure last night to hear my former student Ezra Rosser, AU Washington College of Law, present his new book, A Nation Within: Navajo Land and Economic Development (Cambridge University Press) to the NALSA Chapter at Georgetown Law, I was primed this morning to notice here that Craig Green, Temple University James E. Beasley School of Law, has posted Indian Affairs and Administrative Law.  Appearing originally on Notice and Comment, the blog of the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice, Green’s 

brief essay, written for a Symposium on Racism in Administrative Law, highlights the significance of "Indian Affairs" for the history of administrative law, and raises normative questions about excluding such history from prevalent definitions of the field. To erase Native dispossession from the history of American administrative structures necessarily distorts images of United States law and the violence it has produced.

I'll add that Rosser’s Nation Within, written from the vantage of a White who grew up on the reservation and then became a leading scholar of Poverty Law and Property while continuing to teach Native American Law, is chock full of legal history.  For example, I had not previously understood how the Navajo’s distinctive experience with economic development, including devastating limits on sheep herding and the Nation’s own petroleum company, influenced its rejection of the Indian New Deal.  And I particularly appreciated the illustrated "shout outs" Rosser gave to other law professors who write on Native American law at the start of his talk, if only because it signaled to the students in attendance that any work of scholarship is in fact collaborative, even though one person's name appears on the cover.

From CUP’s website:

In A Nation Within, Ezra Rosser explores the connection between land-use patterns and development in the Navajo Nation. Roughly the size of Ireland or West Virginia, the Navajo reservation has seen successive waves of natural resource-based development over the last century: grazing and over-grazing, oil and gas, uranium, and coal; yet Navajos continue to suffer from high levels of unemployment and poverty. Rosser shows the connection between the exploitation of these resources and the growth of the tribal government before turning to contemporary land use and development challenges. He argues that, in addition to the political challenges associated with any significant change, external pressures and internal corruption have made it difficult for the tribe to implement land reforms that could help provide space for economic development that would benefit the Navajo Nation and Navajo tribal members.

–Dan Ernst