When white Americans and European immigrants began to settle on the Great Plains in the nineteenth century, they were so unnerved by the deathly silence, broken only by the keening wind, that some of them went mad. Or at least this is the proposition investigated in a recent article by paleoanthropologist Alex Velez. Since he neither fully replicated their sensory experiences (omitting howling wolves as well as the creatures that shared settlers' sod homes) nor considered the cultural and historical context that would have conditioned their interpretations of said experiences, his study doesn't really explain the reports of "prairie madness."
But it does raise questions about what counts as silence, how silences are created, and how that relates to the physical spaces in which we find ourselves. Scholars have been, well, voluble about silences in the archives over the past several years. Therefore when I was writing my book The Dreadful Word and attempting to mentally reconstruct eighteenth-century criminal speech prosecutions, I was acutely aware of whom I was largely not hearing: white women, indigenous people, and African-descended people. Why were their voices so rarely in these records? And what would this silence have signified in eighteenth-century courts?
I also began wondering where, if not in prosecutions, I might hear these people's profane, abusive, or vulgar speech, or alternately, what sources might record their legally or politically significant behavior. I'm currently attending the Bright Institute at Knox College, a summer workshop for professors of early American history at liberal arts colleges. This year's theme is material culture, and in the course of our discussions I've had occasion to consider an inherited cupboard, a gifted dress, and stolen cloth as potential sources for legal history, particularly when trying to better hear the voices of women and enslaved people.
The spaces where our sources for legal history exist is especially on my mind this summer, as joyful tweets about "returning to the archive at last!" pop up in my timeline. These tweets are often accompanied by a photograph of a repository of documents, text-based sources with which legal historians are perhaps most comfortable. I intend to work in just such an archive in a few weeks. But I'm also thinking about what spaces might hold other kinds of sources that allow different voices to be heard. I'm wondering about the implications of marginalized people using objects to exercise legal power, and what it would mean to write their actions into the story of colonial New England.
None of these ideas is fully fleshed out; I'm essentially sitting in my sod house, listening to the wind and the wolves, trying to sort out my thoughts (without all the settler colonialism, I hope). I am beginning work on my next book, focusing on women's testimony in eighteenth-century New England courts. I am especially interested in the kinds of knowledge and expertise they brought to legal settings (both civil and criminal), how they established their credibility, and how the nature and extent of their participation in court business changed over time.
This is my final guest post for LHB. Thanks again to Dan Ernst for offering me the opportunity to guest blog this past month; I've really enjoyed the experience.
--Kristin A. Olbertson
Weekend Roundup is a weekly feature compiled by all the Legal History blogger.
Ross E. Davies, George Mason University-Antonin Scalia Law School, has posted Impeachment by Any Other Name, which appears in the University of Kansas Law Review:
--Dan Ernst
Ward Hunt, J. (LC) The subject of how and when Justices of the U.S. Supreme Court leave their jobs has been thoroughly and ably masticated. What more remains to be chewed up and spit out? Perhaps not much, but still a little. By examining and framing the departures from office of some Justices of the U.S. Supreme Court — and the persistence in office of some others — from the perspective of government actors seeking to influence those departures, I hope to provide some perspective on both the efficacy and the legitimacy of such efforts. This little paper is, in other words, a historical introduction to the informal removal of judges.
Back in March, we noted the publication of William Novak's New Democracy: The Creation of the Modern American State (Harvard University Press). The book has generated a range of interesting commentaries, including those featured in an ongoing symposium over at the Yale Journal of Regulation's Notice & Comment blog. Here is what is up so far:
-- Karen Tani
We hear that the third "Legal Histories of Empire" conference, held this year in Maynooth, Ireland, was terrific. For those who missed it, here is the final program and abstracts.
--Dan Ernst
Hohfeld devotees rejoice: Wesley Hohfeld: A Century Later: Edited Work, Select Personal Papers, and Original Commentaries, edited by Shyamkrishna Balganesh, Columbia Law School; Ted M. Sichelman, University of San Diego School of Law; and Henry E. Smith, Harvard Law School (Cambridge University Press) is now available online.
Wesley Hohfeld is known the world over as the legal theorist who famously developed a taxonomy of legal concepts. His contributions to legal thinking have stood the test of time, remaining relevant nearly a century after they were first published. Yet, little systematic attention has been devoted to exploring the full significance of his work. Beginning with a lucid, annotated version of Hohfeld's most important article, this volume is the first to offer a comprehensive look at the scope, significance, reach, intricacies, and shortcomings of Hohfeld's work. Featuring insights from leading legal thinkers, the book also contains many of Hohfeld's previously unseen personal papers, shedding new light on the complex motivations behind Hohfeld's projects. Together, these selected papers and original essays reveal a portrait of a multifaceted and ambitious intellectual who did not live long enough to see the impact of his ideas on the study of law.
Among its eighteen chapter’s is John Henry Schlegel’s Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor, describe in the introduction of the volume as follows:
John Schlegel gives Hohfeld's work a distinctively human dimension. Schlegel's contribution traces Hohfeld's difficulties in acculturating to the life of a law professor, first at Stanford and then at Yale. Using Hohfeld's correspondence with Roscoe Pound as its focus, the chapter reveals Hohfeld's own insecurities about his role in the academy and the ways in which he constructed a narrative around them over the course of his career. Constantly worried about the inadequacy of his salary - both objectively and in comparison to his peers at other schools - Hohfeld is portrayed as a thinker, distinctly unsure of his place in the legal academy butunwilling to abandon his pretensions about his intellectual abilities. Schlegel portrays Hohfeld's friendship with Pound as driven by elements of sycophancy, self-interest, and genuine scholarly regard for the latter's contributions to legal thinking. In so doing, Schlegel reveals Hohfeld to have been significantly less confident about the value of his work during his own lifetime, something that a bare reading of his foundational papers does not reveal. A particularly intriguing theme in Schlegel's chapter, which captures some of the controversy around Hohfeld's character as part-formalist and part-Realist, is the extent to which Hohfeld saw himself doing something fundamentally different from attempting to develop a legal science of juridical ideas, in the vein of Christopher Columbus Langdell. Schlegel documents how Hohfeld - despite being a graduate of Harvard Law School - never fully embraced the ideas of Ames, Langdell, and Beale but situated himself more in thevein of a scholar attempting to engage the world of lawyers and judges more directly. Schlegel's narrative captures these ambiguities in Hohfeld's professional life, best summarized by his characterization of Hohfeld as a "Westerner" attempting to assimilate within the world of the East Coast legal academy.
--Dan Ernst
We hear that Nada Moumtaz, University of Toronto, received Honorable Mention for God’s Property: Islam, Charity, and the Modern State (University of California Press, 2021).
--Dan Ernst
Writing is always a fraught process. It can be especially so during a pandemic. In 2020 and early 2021, when I was completing revisions to my book, I found I needed something to bring structure to my days and weeks. But I also needed liberation from the four walls of my house and the seemingly endless rinse-and-repeat cycle of pandemic life. I needed fresh perspective on material I'd been working on for years; I needed to be inspired.
I started to begin each day by reading poetry. Theodore Roethke reminded me to pay attention to the living things outside my window, and thereby rooted me in time and in the seasons. Thus I noticed when I heard the first mourning dove of the year (in 2021, March 3rd; this year, March 10th). As Adrienne Rich writes in "A Walk by the Charles," "What lends us anchor but the mutable?" Her words were often on my mind as I worked to draw out the larger themes of my argument, without losing sight of the details specific to eighteenth-century Massachusetts.
Some verse was a little too evocative of the here and now. Although originally written about a different time and place, Kipling's lines about "the men who edged their agonies and chid them in their pain" and "the idle-minded overlings who quibbled while they died" were a little too on the nose in early 2020 ("Mesopotamia 1917"). This kind of orientation to daily life did not encourage constructive reflection.
Others, though, invited me to slow down, pay attention, and absorb their offerings. Poets such as e.e. cummings and W.S. Graham and Derek Walcott demanded attention to their neologisms: "mud-luscious," "puddle-wonderful," and "outfloats"; "saltcut," "strewn-silver," and "sparse-powdered." Walcott justly asserted that "when I write/this poem, each phrase go be soaked in salt." When powering through thousands of prosecutions, sometimes it's easy to skim for keywords and dismiss entire phrases as mere legal boilerplate. The practice of reading poetry helped me return to the sources with my ears newly primed for those phrases soaked in salt.
And what of writing? Did the poetry inspire better prose? My colleague Bob Vivian, a poet and writer, thinks it can; he has described reading poetry before writing "like taking a flame from another person and coaxing into one's own." Bob's beautiful metaphor obscures the fact that igniting the first person's flame might have required several frustrating hours of rubbing sticks together. But over the long pandemic winter, I took heart from cummings, who assures us, "--whose hearts are mountains, roots are trees,/it's they shall cry hello to the spring." And, also, from Scottish poet Edwin Morgan's rollicking tribute to "Sir James Murray" (creator of the Oxford English Dictionary), so stuffed with Scots words you'd swear it was a Robbie Burns poem, a reminder that language is supposed to be fun: "To work, to work! To words!"
--Kristin A. Olbertson
Linda Ross Meyer, Quinnipiac University School of Law, has posted Connecticut's Anti-Originalist Constitutions and its Independent Courts, which is to appear in the Quinnipiac Law Review. From the abstract:
This article provides: 1) an overview of Connecticut constitutional development, demonstrating the future-orientation of Connecticut’s 1818 and 1965 Constitutions, 2) an analysis of the way in which the “historical” aspects of Connecticut constitutional analysis have been interpreted, and misinterpreted, by the Connecticut courts, 3) a suggestion that one of the most unique features of Connecticut’s legal development is a tradition of legal independence from historical authority that encouraged locally-informed, common-law-style interpretive practices by its courts, since Connecticut never “received” the English common law and did not adopt the federal Bill of Rights until well after the “founding” period, 4) suggests that the Constitutions of 1818 and 1965 offer more appropriate temporal points of reference for Connecticut constitutional interpretation than the pre-1818 era, even were the Connecticut courts to take an originalist approach, in part because of the more broadly representative group of framers who were involved (which in 1965 included white women, black men, and many groups traditionally excluded from government, like Catholics, Irish, Italians, Jews, and Poles) and 5) counsels generally against using originalist approaches to state constitutional interpretation as unworkable and uncertain, unfair to litigants without special access to historical sources, and contrary to the common law approach instantiated in core legal principles of reasoned and principled argument, equal treatment, and stare decisis.--Dan Ernst
Frederik Dhondt, Legal History Institute/Gustave Rolin Jaequemyns Institute of International Law, has posted John Gilissen and the Teaching of Legal History in Brussels, which appears in Teaching Legal History - History of Legal Teaching, ed. Lukasz Korporowicz (Acta Universitatis Lodziensis - Folia Iuridica 99 (2022), 19-50:
John Gilissen (1912–1988) was a high-profile legal academic at the Université libre de Bruxelles (°1834) and the Vrije Universiteit Brussel (°1969). Personal – albeit fragmentary – archival records deposited with these universities permit to reconstruct his teaching (both ex cathedra-courses for big groups and intensive tutorials), impressive global scientific network and insatiable scientific curiosity. Gilissen is the author of standard works on many aspects of domestic legal history (both public and private), and acquired renown as the secretary-general of the Société Jean Bodin pour l’histoire comparative des institutions. His influential position as a public prosecutor, law professor and legal historian generates a unique insider’s perspective on the confessional, linguistic and constitutional transformation of the country from World War One to the First Reform of the State. The current law curriculum at the Vrije Universiteit Brussel still bears marks of Gilissen’s comparative approach to the history of civil law and his interest in the contemporary relevance of institutional history.--Dan Ernst
Felix Schorling, University of Munster, has posted A Deeper History of German Law:
Most textbooks introducing German law devote special attention to the corruption of law and--Dan Ernst
Sachsenspiegel (Wiki)
legal institutions that took place during the Nazi dictatorship. And then they describe the period in German legal history after the Second World War. This era involved dramatic developments that reoriented (West) German society – politics and law – towards democracy. The most remarkable achievement of the post-war period must be the promulgation in 1949 of the West German Basic Law or constitution. To underscore the new legal regime’s categorical break with Germany’s Nazi past, the Basic Law’s first Article declares: “Human dignity shall be inviolable.” But West Germany’s post-war legal order – eventually extended to all of a reunited Germany – also involved a significant continuation of well-established legal institutions, practices, and norms. In fact, that deeper dimension of German legal history extends back thousands of years. Some provisions of the law have roots in the time of the Roman Emperors. This essay aims to achieve the impossible: to give a brief overview of two millennia of German legal history, even considering the law of the Germanic peoples before there even was a Germany. In pursuing that grand, sweeping assignment, the essay will give special attention to law in the Medieval age (roughly from the fall of the Western Roman Empire to the fall of the Byzantine Empire).
While reviewing the surprising history of American racial classifications, Classified raises questions about the classifications’ coherence, logic, and fairness; for example:• Should Pakistani, Chinese, and Filipino Americans be in the same category despite their obvious differences in culture, appearance, religion, and more?
• Why does the government not allow Americans to classify themselves as bi- or multi-racial?
• How did the government decide that a dark-complexioned, burka-wearing Muslim Yemini should be classified as generically white, but a blond-haired, blue-eyed immigrant from Spain should be classified as Hispanic and treated as a member of a minority group?
• Why does the government require biomedical researchers to classify study participants by the official racial categories, when the classifications have no scientific basis?In an increasingly diverse society with high rates of intergroup marriage, the American system of racial classification is getting even more arbitrary and absurd. With rising ethno-nationalism threatening democracy around the world, it’s also dangerous. Classified argues that the time has come to consider abolishing official racial classification and replace it with the separation of race and state.
--Dan Ernst
Susan Watson, who is Dean of the Business School and holds joint chairs in the Faculty of Law and Faculty of Business and Economics, at the University of Auckland, New Zealand, has published The Making of the Modern Company (Bloomsbury 2022).
Order online at www.bloomsbury.com – use the code GLR T5TUK for UK orders and GLR T5TUS for US orders to get 20% off. TOC after the jump.This book adopts a historical perspective to highlight, and bring back into focus, the key features of the modern company. A central argument in the book is that legal personhood attaching to an entity containing a corporate fund seeded by shareholders is a direct and inevitable consequence of limited liability and the company's status as a separate legal entity from its shareholders. Management by a board subject to legal duties to the company as an entity that can exist in perpetuity facilitates a long term perspective by the board that can accommodate both shareholder and stakeholder interests. These defining characteristics differentiate the modern company from other business forms.
The Making of the Modern Company applies a 21st-century lens to the corporation through its history to identify turning points in its development. It sets out how key features emerged in the course of two separate developmental cycles in English corporate law: first with the English East India Company in the 17th century, and then with general incorporation statutes in the 2nd half of the 19th century. The book's historical perspective highlights that the key features are part of the 'secret sauce' of modern companies. Each cycle coincided with unparalleled periods of economic success associated with corporate activity
This book will be of interest to corporate law and governance academics, theorists and practitioners, those who study the company from related disciplines, and anyone who questions why uncertainty still exists about the structure of a legal form that has been described as 'amongst mankind's greatest inventions'
–Dan Ernst
Having spent many years researching and writing a book about the historical criminalization of speech, I was quite chuffed to learn of a Netflix series titled, "History of Swear Words" (HSW). Each episode of this six-part "documentary" explores the history and significance of a different swear word, and is decidedly NSFW--unless you are in the happy situation of working with swear words.
Swearing experts featured in HSW include Melissa Mohr (historian and author of Holy Sh*t! A Brief History of Swearing); Kory Stamper, lexicographer; and Benjamin Bergen, cognitive scientist. Clips of these academics earnestly explaining the etymology of the f-word, or how a man's name also became a term of abuse, or why swearing increases one's pain tolerance, are chased with reaction footage from comedians such as DeRay Davis, London Hughes, and Sarah Silverman.
The comedians and actors offer more than comic relief, however. As professional practitioners of swearing, they provide the praxis to our professors' theorizing. Some have become so proficient that they've become associated with one swear word in particular. Samuel L. Jackson comes to mind (you know the word); Isaiah Whitlock, Jr. demonstrates why he's known for another (and the principle that the meaning often depends upon the delivery). One is reminded of the narrator's observation about his father in "A Christmas Story": "He worked in profanity the way other artists might work in oils or clay. It was his true medium; a master."
The meaning of swear words also often depends upon the power relations in which they're uttered, as we are reminded by film critic Elvis Mitchell and professor of feminist studies Mireille Miller-Davis. Mitchell makes an especially poignant argument about the difference between the way in which many people heard N.W.A.'s "F--- the Police" and what the group was actually expressing. And Miller-Davis observes that some targets of the b-word slur have been reclaiming the word by using it themselves, about themselves.
It's not all semiotics and the philosophy of AAVE, however. There's a fun diversion into "half-swearing"--examples given include "darn" and "geez," but one can't help but think of "Let's Go Brandon." The "Dick" episode goes a little off-track when it forgets it's supposed to be about the word, and not, well. To illustrate the sheer malleability of the f-word, we get the F*** Family Tree, which includes numerous permutations, but alas, not my personal favorite.
Tying it all together in inimitable fashion is the series host, Nicolas Cage. He greets the viewer in an impeccably tailored suit, lolling in an overstuffed armchair or sauntering to a decanter of Scotch in a Masterpiece Theater-style set. Cage clearly relishes the journey from the ridiculous (spinning out extended double-entendres) to the sublime (roaring the supreme swear word). That very same word, the series has told us, is cathartic, is pain-relieving, and is "a good protest word." For these reasons, perhaps it should be in everyone's vocabulary.
--Kristin A. Olbertson
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers
William Novak, University of Michigan Law School, has published Willard Hurst, Technological Change, and the Transformation of American Public Law in the Wisconsin Law Review Online, which he prepared for the Law, Legal Institutions, and Technological Change Conference held at the University of Wisconsin Law School last April. It is something of a companion piece to his and BJ Ard’s foreword to Hurst’s previously unpublished book chapter “Technology and the Law: The Automobile,’ which appeared this year in the Wisconsin Law Review. Writes Professor Novak:
Hurst viewed the law lectures that increasingly came to dominate the second half of his career not as the heart of his scholarly agenda, but as supplemental – hortatory and educational – what he later called distinctly “missionary” work, designed to acquaint a “wider academic public” with the “exciting subject matter” within the field of legal history. And while nineteenth-century “individualism” and “creative energy” and “enlarging markets” did figure influentially in some of those more general public lectures, there is a deeper and different—more hidden—Hurst lurking in the larger body of earlier work that speaks more directly to the dynamic themes of technological change, legal change, and the transformation of modern American institutions.–Dan Ernst
K. Crosby, Senior Lecturer in Law, Newcastle Law School, has posted several articles on the jury in the United Kingdom England and the United States.
Arguments: Jury lawfinding debates in 1842 New Hampshire, published in A Cultural History of Law, vol 5: A Cultural History of Law in the Age of Reform 1820-1920, ed. Gary Watt and Ian Ward (Bloomsbury, 2019), 91-110:
Abolishing Juries of Matrons, Oxford Journal of Legal Studies 39 (2019): 259-284:The Age of Reform 1820-1920 witnessed a significant move from popular constitutionalism, rooted in traditions of participatory democracy, to a much more exclusive, judge-centric, view of the law (Kramer 2004). This chapter explores this general development through detailed consideration of the particular case of Pierce v State (1843) 13 NH 536. The importance of the Pierce case, which concerned a conflict between the respective powers of judge and jury, has long been acknowledged. In the Supreme Court’s 1895 rejection of jury lawfinding, it was one of the most influential cases cited by Harlan J; and in more recent academic literature its final appellate judgments have been described as “two of the most well-reasoned discussions opposing the jury’s right to judge the law” (Conrad 1998: 69). But despite its foundational status within the judicial rejection of the jury lawfinding argument, little is known about the way the judgments were formed. The present chapter relies on contemporary newspaper reports and pamphlets to fills this gap in the cultural history of the case. In so doing, we will shed light on the popular cultural reception of constitutional developments in the Age of Reform.
C.D. Gibson "The Jury" (1906) (NYPL)
This article explores the last 50 years of the jury of matrons, a special type of jury used in England and Wales until the middle of the 20th century to secure reprieves for pregnant women sentenced to death. Despite claims that the jury of matrons had fallen out of use by the middle of the Victorian era, such juries were used in over 10% of cases in which women were sentenced to death during the first three decades of the 20th century. Exploring the circumstances in which the jury of matrons was abolished in 1931 can help us see how various important parts of the contemporary criminal justice system of England and Wales developed. In particular, it allows us to see in greater detail how ideas of the jury and of capital punishment were changing at this time, and how important political networks were in securing legislative reforms.Keeping Women off the Jury in 1920s England and Wales, Legal Studies 37 (2017): 695-717:
The Sex Disqualification (Removal) Act 1919 ended the prohibition on female jurors. This did not mean that English and Welsh juries became representative institutions overnight, however: the property qualifications ensured that juries were still drawn from the top few per cent of the local population; and the 1919 Act expressly permitted trial judges to order single-sex juries where the nature of the evidence required it. The continued existence of peremptory challenges allowed defendants in felony trials to exclude women from their juries whenever they preferred to be tried only by men. Finally, some judges permitted female jurors to excuse themselves from particular trials if they so desired. This paper explores the effects these factors had on the practical enjoyment of the female jury franchise after the passing of the 1919 Act. It finds that the picture is remarkably localised: rates of women serving on juries were very different for the five assize circuits for which adequate records exist (Midland, Oxford, South Eastern, South Wales and Western). By exploring these issues, this paper reveals how flexible the female jury franchise was in its early years, and shows how important local differences were in keeping women off the jury.--Dan Ernst
--Dan Ernst
It took far longer to get my first book to publication than I ever thought it would. It began as my dissertation, completed in 2005. The next year I began a tenure-track position at a small liberal arts college with a 3:3 teaching load and fairly heavy service and advising expectations. The year after that, my oldest child was diagnosed with both a disability and a chronic illness.
His conditions entailed regular visits to medical specialists and therapists, some up to two hundred miles away; when at home, he required direct supervision at all times. When time allowed, I worked on the major revisions the manuscript required. Extended or multiple visits to archives were simply not a possibility, as he needed specialized care and could not be left. I would have to make the most of the material I had (and fortunately, I had quite a bit). I lost one entire summer to recovery from emergency surgery.
Finally, after six years, I had a fully revised draft ready to submit to a press who had expressed interest. They sent it to readers, who returned thorough reviews which, while supportive, recommended substantive revisions. These were entirely fair, and I probably could have completed them in a year, under normal circumstances. However, my son's illness had just progressed from chronic to acute, and I decided I needed to focus all my energies on helping him.
That situation was so overwhelming for the next few years that I had no thoughts or energy to spare for the manuscript. I didn't even look at it, in fact. But as my son slowly started to recover, I began to think about giving it another try. I got back in touch with the press, and we agreed that it probably wouldn't work to proceed with them anymore. Nonetheless, I tackled revisions in a serious way and began thinking about where else a good fit for the manuscript might be. And thanks to an editor, readers, indexer, copyeditor, and countless others willing to work through the exigencies of pandemic publishing, the book is now in print. More importantly, my son is doing well.
I share my story not for sympathy or because I think it's unique--but because I recognize that these sorts of experiences are becoming all too common in the age of Covid and Long Covid. So many academics, especially caregivers, are seeing their work goals recede into the distance as they try to be the safety net that our society and institutions fails to provide.
Many, particularly contingent and untenured faculty, are feeling anxious about how their caregiving responsibilities have affected, and continue to affect, their scholarly productivity. And they don't feel they can acknowledge their situation--I certainly have not, before now. I would like to normalize talking about some of the challenges we are facing. I'd also like to encourage those of us with tenure to be more creative in thinking about how to extend greater flexibility and support to our colleagues.
N.B.: I've attached labels to this post such as "Publishing advice" and "Research tips," which are quite misleading. Nothing here should be construed as advice or tips, as I do not recommend this path if you can at all avoid it. But I did want to assure anyone else who might be sharing a common experience that you are not alone.
--Kristin A. Olbertson
In Frightened: A Legal Historian's View from 2022, ASLH Honorary Fellow Linda K. Kerber comments on Dobbs in AHA Perspectives. Here’s an excerpt:
All I have written and taught in more than 50 years as a historian has rested on bedrock assumptions: that the constitutional grounding under social change has been stable; that with a handful of exceptions—Dred Scott, Plessy, Lochner, the moment when FDR threatened to pack the Supreme Court—constitutional interpretation has expanded with modern change. I required students in my classes to memorize the first section of the 14th Amendment, including the provision that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Note that it does not read “citizen,” but “person.”) I emphasized that long after they had forgotten the specifics of the class, they will still be able to lean on this guarantee of equal protection to all persons, and I sent them out to be good citizens in the civic world of which they are a part.
But suddenly that view of our history has turned hopelessly romantic.
--Dan Ernst
Here is the TOC for American Journal of Legal History 62:2 (June 2022):
British Policy towards the Incorporation of the Baltic States into the USSR: A Dilemma of de facto and de jure Recognition
Evgeny Tikhonravov
The Judicial Failsafe: American Legal Colonialism in the Philippines
Timothy J Foley
Amnesty and the Limits of Transitional Justice in Brazil: The Case of Expelled Low-Ranking Soldiers, 1964–2014
Marilia Corrêa
Book Reviews
Susan J. Pearson, The Birth Certificate: An American History
Teal Arcadi
Inge Van Hulle, Britain and International Law in West Africa
Joyman Lee
Anne Gray Fischer, The Streets Belong to Us: Sex, Race, and Police Power from Segregation to Gentrification
Marie-Amélie George
--Dan Ernst
Earl Maltz, Rutgers Law School, has published The Coming of the Fifteenth Amendment: The Republican Party and the Right to Vote in the Early Reconstruction Era, in the Louisiana Law Review:
The year 2020 marked the 150th anniversary of the ratification of the Fifteenth Amendment, the last of the three Reconstruction Amendments that fundamentally transformed both the structure of the Constitution and the nature of American federalism. The Fifteenth Amendment differed from its predecessors in a number of important ways. First, it was the only one of the Reconstruction Amendments and remains the only part of the entire Constitution to focus explicitly on race. In addition, the amendment became the first provision of the Constitution to limit the power of the state governments to establish the qualifications for voters in elections for state office, providing that “[t]he right of citizens . . . to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude”1 and vesting Congress with the authority to enforce this command by adopting “appropriate legislation.”2 Thus, among other things, the Fifteenth Amendment provided the most plausible source of congressional authority for the passage of the Voting Rights Act of 1965—a statute which was and continues to be, by any standard, one of the most important civil rights measures that Congress ever adopted. Nonetheless, unlike the Thirteenth and Fourteenth Amendments, legal scholars have shown relatively little interest in exploring the background of the Fifteenth Amendment. This Article describes both the sequence of events that led to the passage and ratification of the Fifteenth Amendment and the forces that shaped the amendment itself.--Dan Ernst
Paula A. Monopoli, University of Maryland Francis King Carey School of Law, has posted Gender, Voting Rights, and the Nineteenth Amendment, which is forthcoming in the Georgetown Journal of Law & Public Policy:
One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that 'there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment'. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.
--Dan Ernst
In my first blog post discussing my recent publication, The Dreadful Word, I described how the criminal law in eighteenth-century Massachusetts became attuned not only to ungodly speech but also to language deemed vulgar and impolite. I also discussed how the criminalization and punishment of impolite speech helped construct new hierarchies of social and political power more strongly oriented to empire. In this post I'll address the last few chapters of the book, where I explore what happened when resistance to imperial policies made those hierarchies unsustainable.
The regime of polite speech that had been established through the prosecution and punishment of vulgar language began to falter under the repeated hammer blows of loud public protest in the 1760s and 1770s. Popular resistance to British imperial policies leveraged traditional politics out-of-doors to a hitherto unprecedented extent. As previous hierarchies of speech premised upon gentility began to disintegrate, new distinctions based upon loyalty to country began to emerge.
Even in this fluid and contested environment, however, language retained its power to announce identity and negotiate relationships. Amid the disruptions and dislocations of the Revolutionary War, Massachusetts legislators found occasion to either renew or reconsider some of their previous statutes defining the criminal import of speech--and to craft new legislation about the significance of oaths. Meanwhile, county courts (when circumstances permitted their sitting) cocked their ears towards words from different mouths, even gentlemanly ones--a marked departure from their practices of previous decades.
None of this is meant to suggest a radical democratization of the speech ethos in Revolutionary-era Massachusetts. Rather, the changes in how authorities defined and punished criminal speech, I would suggest, reflected and promoted contemporary feelings about the associations between language, power, politics, and law. These changes, of course, were occurring in the context of Enlightenment-era conversations about race, gender, reason, and the very construction of identity--and speech was at the center of many of these conversations. Other historians have written brilliantly on some of these ideas, and others remain to be explored. I only hope that The Dreadful Word can provide a useful starting point for future research and conversations about speech, power, and law.
--Kristin A. Olbertson
Kellen Funk, Columbia Law School, has posted Equity's Federalism, which appears in the Notre Dame Law Review:
The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery—the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at either the state or federal levels. The antebellum Supreme Court obligingly adopted a strongly anti-fusion stance and took pains to protect federal equity from experimental state-level reforms. In the midst of Reconstruction, Congress reconfigured the ways federal equity would intermix with state law and legal process. But in the twentieth century, Supreme Court doctrine set aside the well-documented legislative history of Reconstruction statutes in favor of a mythic retelling of the 1790s that reduced equity to a principle of federalism. This judicially invented historical narrative has led to a peculiar asymmetry in practice today, where it has become surprisingly easy for federal courts to equitably restrain the other federal branches but significantly difficult for them to redress even extreme violations of federal rights at the state and local level.
Joseph Story (NYPL)
--Dan Ernst
[We are grateful to David Sugarman, who is himself an Honorary Fellow of the American Society for Legal History, for this notice of the death of Paolo Grossi. DRE]
Paolo Grossi, the distinguished legal historian and Honorary Fellow of the American Society for Legal History (2003), died yesterday. He was a Professor of the History of Medieval and Modern Law, University of Florence, and a judge of the Constitutional Court of Italy (2009-18), ultimately serving as President of the Court (2016-18). He was awarded the Italian Order of Merit for Culture and Art (1985) and was made Knight Grand Cross in the Order of Merit of the Italian Republic (2009). His writings are characterised by wide-ranging scholarship, exceptional clarity, and a deftness that brought together the political, the economic and the legal. His scholarship is a rare and important contribution to legal history and comparative cultural history.
Julie Stone Peters, the H. Gordon Garbedian Professor of English and Comparative Literature at Columbia University, has published Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe (Oxford University Press):
Tirades against legal theatrics are nearly as old as law itself, and yet so is the age-old claim that law must not merely be done, but be “seen to be done.” Law as Performance traces the history of legal performance and spectatorship through the early modern period. Viewing law as the product not merely of edicts or doctrines but of expressive action, it investigates the performances that literally created law: in civic arenas, courtrooms, judges’ chambers, marketplaces, scaffolds, and streets. In so doing, it recovers a long, rich, and largely overlooked tradition of jurisprudential thought about law as a performance practice. This tradition not only generated an elaborate poetics and politics of legal performance. It provided western jurisprudence with a set of constitutive norms that, in working to distinguish law from theatrics, defined the very nature of law. In a crucial opposition, law stood for cool deliberation, by-the-book rules, and sovereign discipline. Theatre stood for deceptive artifice, entertainment, histrionics, melodrama. And yet legal performance, even at its most theatrical, also appeared fundamental to law’s realization: a central mechanism for shaping legal subjects, key to persuasion, essential to deterrence, indispensable to law’s power—as it still does today.
Here are some endorsements:
“In this extraordinarily detailed study, Peters establishes the symbiotic relationship between law’s desire to inhabit a cool center and the inevitable eruption of eloquence and emotion in the service of causes both noble and savage. A fine achievement.” -Stanley Fish, FIU College of Law
“Peters pursues the puzzle of law’s vividae rationes with her characteristic erudition, analytic acuity and verbal verve. Exhaustive and meticulous, Law as Performance brilliantly transforms the cold gray face of the jurist into the terpsichorean figure of justice being done.” -Peter Goodrich, Cardozo Law School
“Rich anecdotal detail enlivens nearly every page.” -William Chester Jordan, Princeton University
“This volume is a treasure trove of ideas and images.” -Judith Resnik, Yale University
--Dan Ernst
Daniel Farbman, Boston College Law School, has posted Redemption Localism, which appears in the North Carolina Law Review:
In the decades after the end of the Civil War, avowed white supremacists across the South sought to “redeem” their state and county governments from the clutches of the hated “radicals” who had taken control during Reconstruction. These Redeemers developed an approach to local power and local control that served their broader political goal of reestablishing white supremacist rule. In their effort to ensure that white citizens were not subjected to “negro rule,” they developed a “Redemption Localism” that consistently sought to limit local power, curtail local democracy, and defund or eliminate local services. This Article tells the story of Redemption Localism as it operated in one state: North Carolina. But I argue that this story has much to teach us about localism across the post- Civil War South and about our localism today. While much of the scholarly conversation about localism focuses on the virtues (and vices) of local control versus centralization, the question for Redeemers was never whether, as an abstract matter, local control was preferable to centralized control. Rather, at decision point after decision point, the question was how the balance between local and state power could be manipulated and adjusted to protect the Redeemers’ political power and further the struggle for white supremacy. This instrumental attitude towards localism remains familiar today as the tools and structures of local power are manipulated to suppress Black voting power, dilute the voices of multiracial local democracies, and maintain existing distributions of power, wealth, and privilege.
--Dan Ernst
I'd like to thank Dan Ernst and LHB for the opportunity to be a guest blogger this month. I'm excited to participate in this community of scholars. As Dan mentioned in his introduction, I recently published my first book, The Dreadful Word: Speech Crime and Polite Gentlemen in Massachusetts, 1690-1776, with the Studies in Legal History at CUP.
For the book, I looked at provincial statutes and General Sessions of the Peace (local courts) records to determine what kinds of verbal offenses were criminalized, prosecuted, and punished in eighteenth-century Massachusetts. I considered how contemporaries described these crimes and the offenders, and tracked who was most likely to be prosecuted and receive the harshest punishments.
Unlike the previous century, when colonists criminalized speech they deemed ungodly, now colonists criminalized speech they considered impolite. In many ways, the statutory scheme and enforcement practices of the 1700s regarding criminal speech reflected the ethos of conduct and courtesy literature.
Surprising patterns emerged. Even as Puritan influence waned, Massachusetts colonists remained deeply interested in criminalizing and punishing speech as part of preserving the King's peace. They enacted and renewed numerous statutes throughout the century outlawing acts such as profane cursing and swearing, defamation, lying, sedition, spreading false news (not yet a political catchphrase), threats, contempt, false swearing and perjury, and mumping (the eighteenth-century version of a confidence man). Additional common law crimes were also avidly prosecuted: noise, abuse, rudeness, and "ill manners."
Moreover, these crimes were not generally applicable, but were associated in legal records with particular sorts of people--the lower orders. Explicit references to soldiers, sailors, and servants, and language that bent the law's ear toward speech occurring in the work and social spaces of the meaner sort make clear whose speech provincial legislators believed was most threatening to good social order.
Meanwhile, patterns of prosecution and punishment also reveal strong associations between "vulgar" speech and "the vulgar." Notably, the participatory and highly discretionary nature of the General Sessions Courts meant that the law could not be employed as a blunt cudgel of power by the elite; the system had to look legitimate. Although historians usually stress the shift to property-related offenses in the caseload of eighteenth-century Massachusetts courts, the more than 1600 cases of speech crime that I uncovered suggest a broad community consensus that these crimes, too, posed significant threat to the King's peace.
In my next post, I'll discuss how the turmoil and chaos of protest and revolution splintered a speech economy premised upon politeness, and created opportunities to recalibrate the relationship between language and power.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
