NYU Legal History Colloquium Fall 2022 Lineup

The New York University Legal History Colloquium has released its Fall 2022 schedule:

September 14

José Argueta Funes, Postdoctoral Research Scholar, Columbia Law School

The Civilization Canon: Common Law, Legislation, and the Case of Hawaiian Adoption

 

September 28

Catherine Baylin Duryea, Visiting Professor of Law, Villanova School of Law (Fall 2022) / Assistant Professor, St. John’s School of Law

Crumbs of Judicial Relief? Judicial Review of Price Control During WW2

 

October 12

Sarah L. H. Gronningsater, Assistant Professor of History, University of Pennsylvania

The Arc of Abolition: The Children of Gradual Emancipation and the Origins of National Freedom (chapter 4)

 

October 26

Sophia Lee, Professor of Law and History, University of Pennsylvania Carey Law School

TBA

 

November 9

Deborah Dinner, Professor of Law, Cornell Law School

The Sex Equality Dilemma: Work, Family, and Legal Change in Neoliberal America (selected chapters)

 

November 23

Bernadette Meyler, Carl and Sheila Spaeth Professor of Law and Associate Dean for Research, Stanford Law School

TBA

The conveners of this year's colloquium are Noah Rosenblum, Daniel Hulsebosch, and David Golove.

-- Karen Tani

Fox on Gold Clauses

David Fox, University of Edinburgh School of Law, has posted Gold Clauses in the Capital Markets of the Early Twentieth Century:

Gold clauses were one of the most legally troublesome issues in international contracting during the 1920s-1930s. The litigation over gold clauses was a sign that the old monetary order based on the international gold standard was breaking down, despite all the efforts of national governments and central banks to restore it. The aim of this paper is not to recount the doctrinal rules developed by F A Mann and other contemporary commentators on the interpretation and implementation of gold clauses in monetary obligations. Rather, it scratches beneath the doctrinal analysis to the commercial and political purposes served by gold clauses. It seeks to connect them with the prevailing understandings of money and monetary valuation in the early decades of the 20th century. It considers the gold-clause contracts as historical instances of the early international bond markets in operation, and the litigation over them as one reaction to the financial instability of the era. The gold clause cases are a neglected chapter in the larger story of international debt payments and settlements of the inter-war years. They mark an important transition between the old monetary order of the international gold standard and the new order of the Bretton Woods system established after the Second World War.

--Dan Ernst

Baird's "Unwritten Law of Corporate Reorganizations"

Douglas G. Baird, University of Chicago Law School, has published The Unwritten Law of Corporate Reorganizations (Cambridge University Press, 2022):

The law of corporate reorganizations controls the fate of enterprises worth billions of dollars and has reshaped entire sectors of the economy, yet its inner workings largely remain a mystery. Judges must police a small and closed fraternity of professionals as they sit down at a conference table and forge a new future for a distressed business, but little appears to tell judges how they are to do this. Judges, however, are in fact bound by a coherent set of unwritten principles that derive from a statute Parliament passed in 1571. These principles are not simply norms or customary practices. They have hard edges, judges must enforce them, and parties are bound by them as they are by any other law. This book traces the evolution of these unwritten principles and makes accessible a legal world that has long been closed off to outsiders.

Here is (quite) an endorsement:

'When the leading bankruptcy scholar of the past generation writes his magnum opus, The Unwritten Law of Corporate Reorganizations is what we get. Reaching back through the centuries, with an especially acute lens on the period from the late nineteenth century to today, Douglas Baird flips the conventional wisdom about corporate reorganization on its head, demonstrating that the solution to financial distress has not been technical legal rules; it has been the unwritten practices of generations of bankruptcy insiders. Baird tells the story in a way no other legal scholar can, with remarkable historical discoveries, vivid anecdotes, subtle analysis, and a prose style that makes The Unwritten Law of Corporate Reorganizations the most unlikely of page turners. It is destined to be a classic not just of bankruptcy, but of American business history.'

David A. Skeel - S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School

--Dan Ernst

Brady on Convention History in State Constitutional Law

Maureen E. Brady, Harvard Law School, has posted Uses of Convention History in State Constitutional Law, which is forthcoming in the Wisconsin Law Review:

The Constitutional Convention at Albany, 1867 (NYPL)

For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states?

Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources.

This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context.

Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.

--Dan Ernst

Weekend Roundup

• The amicus brief of the Organization of American Historians in Brackeen v. Haaland, on “whether the placement preferences of the 1978 Indian Child Welfare Act discriminates on the basis of race,” is here.
  

• Have you browsed the National Constitution Center's Historic Documents Library?  How about its podcasts?

• From the Washington Post's "Made by History" section: Jaipreet Virdi (University of Delaware), "The FDA’s new hearing aid won’t solve the bigger problems in the market"; Laura Ellyn Smith (Oxford University), "Mike Pence is wrong about vice presidents testifying before Congress."

• “The Institute for Political History, the Journal of Policy History and the newly established Arizona State University Center for American Institutions are hosting the Policy History Conference in Columbus, Ohio from Wednesday, June 7 to Friday, June 9, 2023.”  Deadline for submissions of panels and papers is December 31. 
  

• Jeffrey Rosen reviews Democratic Justice, Brad Snyder's biography of Felix Frankfurter, in the New York Times (NYT).  Update: we understand that John Fabian Witt's review in The New Republic is now ungated.
  

• The 2021-2022 Stanford Law School Legal History Paper Prize has been awarded to joint JD/PhD (History) candidate, Tanner Allread, for The Origins of Indigenous Constitutionalism: Choctow Law and Governance, 1826-1830.  Honorable mentions go to recent JD graduate, Taylor Nicolas, for Who Was Your Grandfather on Your Mother's Side: Seduction, Race, and Gender in 1932 Virginia, and JD candidate, Audrey Spensley, for The Specter of Class in Fourteenth Amendment Equal Protection Doctrine: Housing Claims and the Burger Court Era.  
  

• UConn historians discuss abortion in Colonial America in  Kimberly Phillips’s “Abortion in Colonial America: A Time of Herbal Remedies and Accepted Actions” (UConn Today).
  

• AP History versus new CRT laws (The Conversation).  Also: An AP African American Studies course (Time).
  

• The Summer 2022 issue of the Journal of the Texas Historical Supreme Court Society "features influential women in Texas legal history." Check it out here.

• ICYMI: SCOTUSblog on Reva Siegel's Jackson lecture on Dobbs and Cherry-Picked history.  Annette Gordon-Reed interviewed (E-International Relations).  Sheffeld, Massachusetts, honors Elizabeth Freeman, who prevailed in a freedom suit 241 years ago, with a bronze statue (NPR).  Thoughts on moral panics as Massachusetts exonerates a witch (HNN).
  

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

Lash on the 14th Amendment's State Citizenship Clause

Kurt T. Lash, University of Richmond School of Law, has posted The State Citizenship Clause:

The first sentence of the Fourteenth Amendment contains not one, but two citizenship clauses. The first defines national citizenship and the second defines state citizenship. Although a significant body of scholarship exists regarding the history and meaning of the former, no prior work has investigated the origins and original understanding of the latter.

Unlike the National Citizenship Clause, the State Citizenship Clause had no analogue in the 1866 Civil Rights Act. The unique language of State Citizenship Clause emerged out of a private Republican Senate Caucus which met to address concerns about the Joint Committee’s proposed Fourteenth Amendment. Post-passage criticism of the 1866 Civil Rights Act had revealed a major flaw in the Act: The statute failed to secure the status of state citizenship and potentially left open a loophole through which states might continue to deny Black Americans equal civil rights. The State Citizenship Clause closed this loophole by securing the status of local citizenship for every resident American citizen, regardless of race. Any state law that denied a local civil right on the basis of race by definition denied that resident their status of equal state citizenship. Throughout the ratification period, proponents of the Fourteenth Amendment repeatedly insisted that the final language of Section One prohibited states from denying equal civil rights to any resident American citizen. This prohibition on racial discrimination was not limited to certain “fundamental” civil rights. It applied to all state level civil rights, no matter how trivial. This history suggests that the original understanding of the Fourteenth Amendment supports decisions like Brown v. Board of Education but does so on the basis of the original understanding of the State Citizenship Clause.

–Dan Ernst

Tani, "The Pennhurst Doctrines and the Lost Disability History of the 'New Federalism'"

I recently posted the finalized version of an article I've been working on for a long time, on the landmark deinstitutionalization case Halderman v. Pennhurst State School & Hospital and its broader public law significance. "The Pennhurst Doctrines and the Lost Disability History of the 'New Federalism'" is forthcoming in Volume 110 of the California Law Review. Here's the abstract:

This Article reconstructs the litigation over an infamous institution for people with disabilities—Pennhurst State School & Hospital—and demonstrates that litigation’s powerful and underappreciated significance for American life and law. It is a tale of two legacies. In U.S. disability history, Halderman v. Pennhurst State School & Hospital is a celebrated case. The 1977 trial court decision recognized a constitutional “right to habilitation” and ordered the complete closure of an overcrowded, dehumanizing facility. For people concerned with present-day mass incarceration, the case retains relevance as an example of court-ordered abolition.

For those outside the world of deinstitutionalization and disability rights, however, the Pennhurst case carries different associations, drawn from the two Supreme Court decisions (in 1981 and 1984) that the litigation produced. Although rarely analyzed in tandem, both decisions were about the scope of federal power vis-à-vis the states: the first about how to interpret the terms of federal-state grants-in-aid, a ubiquitous policy device by the second half of the twentieth century; the second about state sovereign immunity.

Bringing these multiple legacies together for the first time—with the benefit of interviews and archival research—this Article shows how an unprecedented victory for disabled and institutionalized Americans limited the role of the federal government in the lives of all Americans. The litigation did so by (1) restricting Congress’s ability to incentivize fair and adequate treatment and (2) constraining individuals’ use of federal courts to hold accountable the level of government with the most meaningful ability to harm or help them. This Article concludes by suggesting what we gain from restoring historical context to these doctrinal innovations. Future research should explore how ideas about intellectual and developmental disability in the late twentieth century informed equality doctrines and the judicial enforcement of positive rights.

You can download the full article here, on SSRN. It should also be up soon on the California Law Review website.

I may do a few follow-up posts about particular facets of the article and the broader literatures and legal debates I hope it will contribute to. And stay tuned for a follow-on article I'm writing with Katie Eyer (Rutgers Law) -- elaborating on the under-appreciated importance of disability-related cases to constitutional federalism doctrines in the late 20th century.

Special thanks to Rabia Belt (Stanford Law) for being a trailblazer and community builder at the intersection of disability history and legal history. I would not have ventured into this research area but for her inspiration.

-- Karen Tani

A Symposium on Koskenniemi's "To the Uttermost Parts of the Earth"

 [We have the following announcement.  DRE]

On 6 September 2022, the Journal of the History of International Law is organising an online evening symposium (CET 20.00h-22.00) to celebrate the publication of Martti Koskenniemi's book “To the Uttermost Parts of the Earth”: Legal Imagination and International Power, 1300-1870 (Cambridge University Press, 2021). The event will take place on Zoom.

This is the program:

Chair: Dr. Inge Van Hulle (Max Planck Institute for Legal History and Legal Theory)

20.00h: Welcome by Prof. Randall Lesaffer (KU Leuven/Tilburg University)

20.05h: Presentation of book by Prof. Martti Koskenniemi (University of Helsinki)

20.30h: Comments by Prof. Koen Stapelbroek (James Cook University): 'Commerce, capitalism and the law of nations'

20.45h: Comments by Prof. Jennifer Pitts (University of Chicago): 'The struggle between statehood and civil society'

21.00h: Comments by Prof. Wim Decock (UCLouvain): 'Theology and the justification of sovereignty and property'

21.15h: Response by Prof. Martti Koskenniemi

21.30h: Open discussion and questions

Please register by sending an email to: vanhulle@lhlt.mpg.de

Anderson on the Merchant Ship as Proto-Corporation

Robert Anderson, Pepperdine University Rick J. Caruso School of Law, has posted  The Sea Corporation:

Over the two centuries the corporation has become the dominant form of business organization, accounting for more productive assets than all other business forms combined. Yet the corporation is relatively young for a legal institution of such economic importance. As late as the middle of the nineteenth century, most business was still conducted through partnerships, with corporations active only in a few industries. Only in the ensuing decades did restrictions ease allowing the corporation to secure its economic dominance.

Commentators widely attribute the corporation’s success to a set of features thought to be unique to the corporation, including limited liability, transferable shares, centralized management, and entity shielding. Indeed, the consensus among economic and legal historians is that these essential corporate features created a unique economic entity that rapidly displaced the obsolete partnership.

This Article argues that these economic features were not unique to the corporation, nor did

NYPL Digital

they first develop in the business corporation. Over many centuries, the maritime law developed a sophisticated system of business organization around the entity of the merchant ship, creating a framework of legal principles that operated as a proto-corporate law. Like modern corporate law, this maritime organizational law gave legal personality to the ship, limited liability, transferable shares, centralized management, and entity shielding. The resulting “sea corporations” were the closest to a modern corporation that was available continuously throughout the 17th through early 19th centuries in Europe and the United States.

The fact that maritime law developed all the most important features of corporate law offers important lessons for business organizational law itself. The parallel development of the same characteristics, with different and independent mechanisms, is strong evidence of the economic importance of the features of the modern corporation. The maritime law employed a unique device—the maritime lien—to achieve the same economic results as the nascent corporation. The key turn was the use of a property mechanism, rather than the contract mechanisms of partnership law, to implement in rem attributes. The vessel is property come to life in the eyes of the law, developing a form of legal personhood. Viewed in this broader context, the corporation is not a unique institutional solution to recurrent economic problems; it was a convenient vehicle for expanding and generalizing a set of economic solutions.

This new organizational theory of maritime law provides potentially important lessons for both maritime law and business organizations law. First, the theory provides a guiding principle for otherwise disorganized features of maritime law. It suggests that courts should explicitly interpret maritime law as a form of business entity law, keeping maritime law’s distinctive purposes, but drawing from the rich theoretical insights of law of other business associations to inform its unique institutions. At the same time, the long history of maritime law as business organization law provides hints for enduring challenges in corporate law, such as externalities of limited liability on involuntary creditors, such as tort creditors. Here, maritime law provides time-tested solutions, providing a system that provides priority for such creditors over contract creditors, solving one of corporate law’s most vexing problems.

--Dan Ernst

Snyder's "Democratic Justice"

At last, there is a full-scale biography of Felix Frankfurter!  My Georgetown Law colleague Brad Snyder has published Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (W. W. Norton):

The conventional wisdom about Felix Frankfurter—Harvard law professor and Supreme Court justice—is that he struggled to fill the seat once held by Oliver Wendell Holmes. Scholars have portrayed Frankfurter as a judicial failure, a liberal lawyer turned conservative justice, and the Warren Court’s principal villain. And yet none of these characterizations rings true.

A pro-government, pro-civil rights liberal who rejected shifting political labels, Frankfurter advocated for judicial restraint—he believed that people should seek change not from the courts but through the democratic political process. Indeed, he knew American presidents from Theodore Roosevelt to Lyndon Johnson, advised Franklin Roosevelt, and inspired his students and law clerks to enter government service.

Organized around presidential administrations and major political and world events, this definitive biography chronicles Frankfurter’s impact on American life. As a young government lawyer, he befriended Theodore Roosevelt, Louis Brandeis, and Holmes. As a Harvard law professor, he earned fame as a civil libertarian, Zionist, and New Deal power broker. As a justice, he hired the first African American law clerk and helped the Court achieve unanimity in outlawing racially segregated schools in Brown v. Board of Education.

In this sweeping narrative, Brad Snyder offers a full and fascinating portrait of the remarkable life and legacy of a long misunderstood American figure. This is the biography of an Austrian Jewish immigrant who arrived in the United States at age eleven speaking not a word of English, who by age twenty-six befriended former president Theodore Roosevelt, and who by age fifty was one of Franklin Roosevelt’s most trusted advisers. It is the story of a man devoted to democratic ideals, a natural orator and often overbearing justice, whose passion allowed him to amass highly influential friends and helped create the liberal establishment.

Some endorsements:

"Exhaustively researched, gracefully written, persuasively argued, and historically grounded, [Democratic Justice] enriches our understanding of American democracy, politics, jurisprudence, and the liberal establishment.… One comes away from a reading of this book with a profound and renewed admiration for Felix Frankfurter and the obligation to reexamine his steadfast adherence to what he believed to be the limited role of an appointed judiciary in a liberal democracy."
David Nasaw, author of The Last Million and The Patriarch

"The conventional wisdom is that Felix Frankfurter was a liberal lawyer who became—surprisingly—a conservative justice. Brad Snyder’s spellbinding biography brilliantly revises this understanding to present Frankfurter as a champion of democracy in his day—and for our own as well."
Laura Kalman, Distinguished Research Professor, University of California, Santa Barbara

"For years people interested in constitutional law and US history have missed a comprehensive biography of Felix Frankfurter, in his time the most influential figure in constitutional law and an important contributor to progressive thought and politics. Finally we have one.… This is a major achievement that deserves to be widely read."
Mark Tushnet, William Nelson Cromwell Professor of Law Emeritus, Harvard Law School

"A magnificent and indeed definitive biography of a vitally important but highly imperfect justice."
David J. Garrow, Pulitzer Prize–winning author of Bearing the Cross and Liberty and Sexuality

--Dan Ernst

Whitely on Property in Wolves

Jack Whiteley, a Fellow and Supervisory Attorney in the Environmental Law & Justice Clinic at the Georgetown University Law Center, has posted Property in Wolves, which is forthcoming in the Cornell Law Review:

"A Wintry Scene" (NYPL)

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.

The Article finally offers thoughts as to why animal eradication was such a pronounced public policy. The phenomenon suggests the influence of cultural preferences on property regimes.

–Dan Ernst

Hewer, "Beyond Exclusion in Medieval Ireland"

Brepols Publisher has released Beyond Exclusion in Medieval Ireland: Intersections of Ethnicity, Sex, and Society Under English Law (2022), by Stephen Hewer (University of Liverpool). A description from the Press:

The notion that all Gaelic peoples were immediately and ipso facto denied access to the English royal courts in Ireland, upon the advent of the English in 1167, has become so accepted in academic and popular histories of Ireland that it is no longer questioned. This book tackles this narrative of absolute ethnic discrimination in thirteenth- and early fourteenth-century English Ireland on the basis of a thorough re-examination of the Irish plea rolls. A forensic study of these records reveals a great deal of variation in how members of various ethnic groups and women who came before the royal courts in Ireland were treated. Specifically, it demonstrates the existence of a large, and hitherto scarcely noticed, population of Gaels with regular and unimpeded access to English law, identifiable as Gaelic either through explicit ethnic labelling in the records or implicitly through their naming practices.  

More information is available here. (h/t New Books Network.)

-- Karen Tani

Weekend Roundup

• "Although the U.S. Congressional Record has been in a digital format for some time, a version that can easily be searched is now available on an online platform—offered by the Brigham Young University J. Reuben Clark Law School"  (ABA Journal).  For all of BYU Law's legal corpora: this.
  

• 
  An interview with Julie Stone Peters, Columbia University, about her book Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe (Columbia News).
  

• On Monday, July 11, 2022, Reva Siegel, Yale Law School, delivered the eighteenth annual Robert H. Jackson Lecturer on the Supreme Court of the United States at the Chautauqua Institution.  A video of her lecture, on Dobbs v. Jackson Women’s Health Organization is here.  The lecture drew upon her article, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance,” which is forthcoming in the Texas Law Review. 
  

• Andrew Delbanco, the Alexander Hamilton Professor of American Studies at Columbia University, will deliver the 2022 Jefferson Lecture in the Humanities, entitled, “The Question of Reparations: Our Past, Our Present, Our Future,” on October 19, 2022, “at President Lincoln’s Cottage historic site and museum in Washington, D.C., at 6:30 p.m. The lecture is free and open to the public and will stream online [here.] In his remarks, Delbanco will address reparations for slavery in the United States, using history, philosophy, and literature to examine a wide range of perspectives on the debate.”
  

• Ananda V. Burra, a Michigan Law JD and PhD who served as the McCurdy Legal History Fellow at the University of Virginia in 2016-2017, is now an Associate Professor at BML Munjal University in Delhi.
  

• “The New Haven Museum will commemorate Connecticut Freedom Trail Month with a virtual presentation, ‘Uncovering Their History: African, African American, and Native American Burials in Hartford’s Ancient Burying Ground, 1640-1815,’ by historian, educator, author, and recently named publisher of Connecticut Explored magazine, Dr. Katherine A. Hermes, on Wednesday, September 14, 2022, at 6 p.m. Register here" (Patch).
  

• Two Trinity College students spent ten weeks this summer researching “the stories of inmates at the country’s first state prison and to investigate the roots of mass incarceration” for their project, ‘Humanizing History at Old New-Gate Prison’” (More).
  

• A notice of Dame Priscilla Olabori Kuye, “the first and only woman to become the President of the Nigerian Bar Association” (The Nigerian Lawyers).
  

• John Fabian Witt, Yale Law School, has published the essay American Contagions: Unexpected Pasts, Unwieldy Presents, and Contested Futures, in the University of St. Thomas Law Review 18 (2022): 510-524.

•  From the Washington Post's "Made by History" section: Molly Michelmore (Washington & Lee), "Biden’s Inflation Reduction Act exposes our allergy to taxes"; Shannon Withycombe (University of New Mexico), "Dobbs may exacerbate our racially disparate infant mortality rates"; Hidetaka Hirota (UC Berkeley), "The disturbing precedent for busing migrants to other states"; JoAnne Sweeny (University of Louisville), "Ireland changed its antiabortion laws. Can it offer a blueprint for the U.S.?"; William E. Nelson (New York University School of Law), "What Justice Kavanaugh gets wrong about the Supreme Court and politics"; Jeremy A. Greene (Johns Hopkins University), "The Inflation Reduction Act reflects the changing politics of RX drugs."

• ICYMI: From Poison Control Statutes to Pope Pius IX: The History of Anti-Abortion Law, by Elisabeth Griffith (Literary Hub).  Seth Barrett Tillman, Maynooth University School of Law and Criminology, questions a reference to the British Conservative politician John Enoch Powell (SSRN).  DRE.  David Adler on John Marshall Harlan's imperishable Plessey dissent (NLJ).
  

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

Abraham and White on Cardozo's "Forks-in-the-Road"

Kenneth S. Abraham and G. Edward White, University of Virginia School of Law, have posted Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial Process, which is forthcoming in the Yale Journal of Law and the Humanities:

This Essay was prepared for a Symposium at the Yale Law School, celebrating the one-hundredth anniversary of The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921. Revisiting these lectures presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal 'path', or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.

We then show how Cardozo employed the concepts of doctrinal paths and 'forks in the road' in several of his most famous torts cases. We conclude that when Cardozo’s discussion of those concepts is understood as one of the principal contributions of The Nature of the Judicial Process, the lectures can be understood to be of lasting as well as historical significance.

--Dan Ernst

Affirmative Action: The ICS Seminar

[We are moving this up, as the deadline is approaching.  DRE]

Our friends at the Institute for Constitutional Studies have announced another seminar for advanced graduate students and junior faculty, “Affirmative Action”:

Prior to the pandemic and the economic downturn, affirmative action was one of the most divisive issues in public policy.  While it is closely tied to issues of racism (past and present), it also has strong ties to the women’s movement, Hispanic rights, and disability programs. Normally we start looking at affirmative action in the Kennedy-Johnson years, but in fact its roots go back to Reconstruction after the Civil War. There are two types of affirmative action programs, which I label “hard” and “soft,” and the distinction will be at the heart of the discussion. There is a story of an administrative agency run wild, and of course, there are court cases. One must bear in mind that this is not a simple liberal vs. conservative debate, for some of the fiercest critics have been liberals.  We will end the course with a look at the most recent case that involved Harvard and Asian-American students.

Instructor.  Melvin I. Urofsky is professor emeritus of history at Virginia Commonwealth University.  He is the longtime editor of the Journal of Supreme Court History and has written widely on American constitutional development.  His most recent books are the prize-winning Louis D. Brandeis: A Life (2009), Dissent and the Supreme Court (2015), and The Affirmative Action Puzzle (2020).

Logistics.  Tuesday afternoons, 3:50–5:50 p.m., October 11, 18, 25, November 1, 8, 15, and 22, 2022. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until September 15, 2022. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICS prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICS also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history. icsgw@law.gwu.edu

Herzfeld on How Lawyers Came to Dominate Tax Policy

It’s gated, but, as the star footnote explains, it’s an article that some of us have been awaiting for a long time: Mindy Herzfeld, Professor of Tax Practice, University of Florida Levin College of Law, has published The Role of Professional Organizations in Practice and Policy: How Lawyers Overtook Accountants and Economists in the Early 20th Century Tax Field, in Tax Lawyer 75 (Fall 2021): 79-124:

Tax policy and practice are inherently interdisciplinary, involving the close collaboration of lawyers, accountants, and economists. But the presence and strength of the legal profession in a field that was from its start dominated by accountants and economists was not preordained. To no small degree, self-conscious action by the organized profession and effective engagement by its professional associations allowed tax attorneys to establish dominance in an area in which they saw a lucrative future. The American Bar Association (ABA) Tax Committee played an important role in helping to propel lawyers from their poor starting position in the newly created field of federal income tax after the passage of the 16th Amendment to a position of strength in a lucrative practice area with the ability to shape the development of policy.

The story of how tax attorneys came to dominate the fields of tax policy and sophisticated tax practice for much of the 20th century is a success story of strong professional organizations. This Article illustrates how the organization of attorneys focusing on taxation into a specialized group within bar associations has played an important role in making lawyers the central players in tax policy and tax practice in the United States over the 20th century. It places some of the contemporary challenges facing the legal profession in the tax area and questions over its interaction with other disciplines in historical perspective by tracing the early history of the specialization of tax lawyers within professional associations. These associations laid the groundwork for the creation of a tax bar with its own self-identity and ethical guidelines.

This Article explores the role played by the bar associations, in particular the ABA, in developing and promoting the practice of tax law among attorneys and the prestige of lawyers as tax practitioners and developers of tax policy. As part of the effort to map out the expansion of the professional associations of tax attorneys, the Article first sets out the historical background of the growth of professional organizations in the United States. It then examines the development of the U.S. federal income tax law during its first decades, along with the role economists played in that development, followed by a study of the role of the accounting profession in tax practice during this time. An exploration of the role played by a number of prominent attorneys in tax policy and tax practice and of the Association of the Bar of the City of New York sets the stage for consideration of the formation and development of the ABA Tax Committee in the 1920s. The history of the organization and activities of the ABA Tax Committee demonstrates how it became so effective in propelling attorneys to a position of significant influence within the worlds of tax legislation, tax policy, and tax practice.

--Dan Ernst

CFP: History of Prison Reform in Colonial and Postcolonial Contexts

[Here is a legible version of a previously posted call for papers.  DRE]

History of Prison Reform in Colonial and Postcolonial Contexts: Hope and Disappointment
17-19 June 2024, Sapir Academic College, Israel

This workshop will explore the history of prison reform in the colonial context, its hopes and failures. It seeks to broaden our understanding of the distinctiveness of penal reform in colonial and postcolonial territories, and to clarify how it differs from its implementation in other, non-colonial settings. The claim of promoting penal reform was often an explicit part of the colonial 'civilizing mission' and its application an indicator of progress. Proclaimed reformist intentions, however, were often not fulfilled in practice. Historians have examined the violent and oppressive practices of colonial penal regimes. A considerable part of this scholarship criticizes the Eurocentricity of the progressive reformist narratives, often underpinned by the Foucauldian argument about a shift from corporal punishment to imprisonment, and laced with disciplinary and surveillance knowledge-power technologies. These studies reveal that within the colonial context, the European penal model underwent transformations, both deliberate and unintended ones.

Postcolonial accounts of penal regimes critically analyze the implementation of reformist, humanitarian institutions and ideas. While reformist ideology explicitly advocates for humanistic values, in practice it can nonetheless support imperial projects of control over foreign bodies. The proposed workshop will explore the implementation, rejection and manipulation of reform mechanisms of the penal system in colonial settings by the various social players that were involved in these practices. Who were the players advocating for reform and what was their agenda? When reformist practices and institutions were transplanted to colonial settings, how did they change? In what ways were the subalterns able to influence the meaning of these practices? What impact did the broader political, administrative and societal context have on these practices? In what ways are the achievements and failures of reform different in a colonial and non-colonial context? The participants in the proposed international workshop will work together towards providing answers to these fundamental questions that stand at the heart of current debates on colonial punishment and the shortcomings of penal reforms.

Submission Guidelines:  The workshop will be held at Sapir Academic College, Israel on 17-19 June 2024. All participants will be expected to submit a working paper by 10 May 2024, to be distributed to the other participants. Those interested in participating in the workshop are welcome to send a one-page proposal in English, along with a short C.V., by 18 October 2022. The proposal should briefly state the topic and outline how the paper contributes to the aims of the workshop. We hope to publish selected papers from the workshop as a book or a special journal issue. Please send the above and refer any questions to Orna Alyagon Darr (oad@mail.sapir.ac.il). Financial assistance for airfare and accommodation will be offered depending on funding.

Rabb on Punishment in Medieval Islamic Law

Intisar A. Rabb, Harvard Law School, has posted Enforcement and Punishment in Medieval Islamic Law, which is forthcoming in Cultural History of Crime and Punishment in the Medieval Age, ed. Sarah McDougall and Karl Shoemaker (Bloomsbury 2022):

The striking thing about medieval Islamic criminal law is that it featured a jurisprudence of doubt and lenity facing off against political practices of control and severity. Principles of Islamic criminal law placed interpretive authority in the group of scholar-jurists who gained expertise to read divine texts to say what the Law is (sharīʿa). Practices of Islamic criminal law authorized executive authorities—caliphs, sultans, and their agents—power over law enforcement (siyāsa). Principles informed the task of expert jurists and state-appointed judges in defining legitimate punishment derived from Islam’s foundational texts. Practices informed the wide array of severe punishment that law enforcement officials meted out regularly, with a justification that it was “in the public interest” (maṣlaḥa). Principles often justified limited punishment by means of “deterrence” (zajr) and “spiritual rehabilitation” (kaffāra). Practices often justified unrestrained punishment as a means of maintaining law and order, social control, or might as right. The principles of punishment, practices of punishment, and justifications for punishment typically operated in siloes separated by a wide plain. This chapter explores the ground where they met.

Examining both principles and practices of medieval Islamic criminal law can shed light on some of the most pressing questions of old criminal law (Islamic and otherwise): What is the extent of convergence or divergence between Islam’s principles and practices? How, from juristic or social-political accounts of criminal justice, can we explain the types of punishments we see on the books and in the world as we know it?

To answer these questions, I will explore the principles-practices divergence by first examining the legal sources. Then I will review them alongside narratives of social-political practices. For the legal principles, I draw on previous work outlining medieval Islamic criminal law and the expansive role of doubt in substantive law and in criminal procedure. To explore the practices, I canvas Maḥmūd Shaljī’s seven-volume Encyclopedia of Punishment (MMawsūʿat al-ʿadhāb), in which he collects all mentions of “punishment” from a well-known set of historical chronicles and other literary sources from the eighth century onward. I supplement his sources with the less-covered Seljuq, Mamlūk, and Ottoman-era accounts of punishment that Christian Lange (2012), Carl Petry (2008), and others have collected in their studies. By combining views of criminal law from the pens of medieval jurists together with accounts of contemporaneous acts reporting on their less verbose executive counterparts, I offer depictions of how each side tended to approach crime and punishment.

--Dan Ernst

Ryan on the Cy-Près Doctrine

Christopher J. Ryan, University of Louisville Louis D. Brandeis School of Law, has posted An Historical and Empirical Analysis of the Cy-Près Doctrine, which is forthcoming in the ACTEC Law Journal:

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field.

First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

--Dan Ernst

Walker, Silva Campo, Manners, Hébrard, & Scott, "Impunity for Acts of Peremptory Enslavement: James Madison, the U.S. Congress, and the Saint Domingue Refugees"

The July issue of the William and Mary Quarterly includes an article of likely interest to our readers: "Impunity for Acts of Peremptory Enslavement: James Madison, the U.S. Congress, and the Saint Domingue Refugees," by Andrew J. Walker (Omohundro Institute of Early American History and Culture), Ana María Silva Campo (University of North Carolina, Chapel Hill), Jane Manners (Temple Law), Jean M. Hébrard (Paris’s École des Hautes Études en Sciences Sociales), and Rebecca J. Scott (University of Michigan). The article is behind a paywall, unfortunately, but here's the abstract:

In 1809 more than three thousand people were claimed as slaves upon arrival in Louisiana, in violation of the 1807 U.S. law against the international trade in persons to be held or sold as slaves. Having lived as free persons in Saint Domingue since the revolutionary emancipations of the 1790s, these people had been swept into a large exodus of war refugees in 1803, as the Napoleonic expeditionary assault ravaged the colony. When France and Spain went to war in 1808, the Spanish government in Cuba expelled the “French” refugees. More than ten thousand soon made their way toward Louisiana. Before their departure, one hundred prosperous white refugees penned a petition to President James Madison, seeking to bring into the United States those whom they coyly described as their “domestics.” In June 1809 the U.S. Congress passed, and the president signed, a law granting the requested “remission of penalties” for those from Saint Domingue via Cuba who had violated the 1807 law. The Louisiana legislature, in turn, authorized putative owners to buy and sell those they now claimed as slaves. The dynamics of these acts of peremptory enslavement reframe our understanding of Caribbean connections in the early U.S. Republic, and of the 1807 law.

-- Karen Tani

A Note on Hundley v. Gorewitz

 [In my first-year Property course last semester, I included a question on Hundley v. Gorewitz, 132 F. 2d. 23 (DC Cir. 1942), which came to my attention through Alisha Jarwala, “The More Things Change: Hundley v. Gorewitz and ‘Change of Neighborhood’ in the NAACP’s Restrictive Covenant Cases,” Harvard Civil Rights-Civil Liberties Law Review 55 (2020): 707-731.  The following essay draws upon are the record and briefs in the case, which are available on Internet Archive, thanks to a digitization project of Georgetown Law's Edward Bennett Williams Library, and also Ms. Jarwala’s research in an oral history of Mary Gibson Hundley, a 1918 cum laude graduate of Radcliffe College, at the Harvard Radcliffe Institute.  The Institute has posted a transcript of a 1947 radio interview of Hundley and holds her papers at the Mary Schlesinger Library on the History of Women in America.

[The case appealed to me as an exam question because it raised two issues in the law of servitudes (creation by implication from a general plan; changed circumstances) and could also serve as an evaluation of an Institutional Learning Objective Georgetown Law adopted last year: “Ability to think critically about the law's claim to neutrality and its differential effects on subordinated groups, including those identified by race, gender, indigeneity, and class.”  The students had already read a note, drawing heavily upon Mark Tushnet’s Making Civil Rights Law, on Corrigan v. Buckley and how civil rights lawyers attacked the state action requirement in Shelley v. Kraemer, and Shelley itself.  Another note discussed the litigation of the racial identity of the parties in Sipes v. McGhee and Hurd v. Hodge.  DRE]

In 1910, two developers, Harry Willson and Harry Wardman, built a block of six rowhouses on the west side of Thirteenth Street, N.W., a north-south artery in the District of Columbia.  They are numbered 2524, 2526, 2528, 2530, 2532, and 2534  and are the white, red-tile-roofed rowhouses pictured at right. The six houses appeared in a plat captioned "Harry B. Willson's subdivision of lots in Block numbered Thirty (30) Columbia Heights" that was duly recorded in office of the Surveyor of the District of Columbia.

The developers sold all six houses within a two-month period in 1910.  The deeds of five of them included the following covenant: "said lot shall never be rented, leased, sold, transferred or conveyed unto any Negro or colored person."  For unknown reasons, the deed for the first house sold, No. 2526, did not include the covenant.  Even so, no African Americans bought any of the six houses before 1940.

Weekend Roundup

• In The Atlantic: Justin Driver (Yale Law School) reviews Brad Snyder's soon-to-be-released Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (Norton, 2022). "'The Greatest Talker of His Time': Felix Frankfurter was an eloquent liberal champion of judicial restraint. Is it time for a reappraisal?"

• The Notice & Comment symposium on Bill Novak's New Democracy has concluded with a response post from Novak: "A Modern Democratic State, If We Can Keep It."
  

• From the Washington Post's "Made by History" section: Mitchell Robertson (University College London/Centre on U.S. Politics), "Violating the Presidential Records Act is no small transgression"; Duncan Hosie, "Justice Alito is living up to promises to supporters of his nomination." 
  

• Also in the Washington Post (opinion pages): William Baude (Stanford Law School), "Of course the Supreme Court needs to use history. The question is how."
  

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

Ng's "Political Censorship in Hong Kong"

Michael Ng, The University of Hong Kong, has published Political Censorship in British Hong Kong: Freedom of Expression and the Law (1842–1997), with the Cambridge University Press:

Drawing on archival materials, Michael Ng challenges the widely accepted narrative that freedom of expression in Hong Kong is a legacy of British rule of law. Demonstrating that the media and schools were pervasively censored for much of the colonial period and only liberated at a very late stage of British rule, this book complicates our understanding of how Hong Kong came to be a city that championed free speech by the late 1990s. With extensive use of primary sources, the free press, freedom of speech and judicial independence are all revealed to be products of Britain's China strategy. Ng shows that, from the nineteenth to the twentieth century, Hong Kong's legal history was deeply affected by China's relations with world powers. Demonstrating that Hong Kong's freedoms drifted along waves of change in global politics, this book offers a new perspective on the British legal regime in Hong Kong.

--Dan Ernst

ASLH Program Now Available

The American Society for Legal History has released the program for the 2022 meeting: here. 

More from the announcement:

Thanks so much to the Program Committee, chaired by Sophia Lee and Fahad Bishara, for crafting such exciting offerings, representing some of the best that the ASLH community has to offer. 

We look forward to seeing you in Chicago. As a reminder, preconference events begin Thursday, November 10. Panels will begin on Friday, November 11. We will gather Friday evening at the University of Chicago for our plenary lecture, by Risa Goluboff (University of Virginia), entitled, "'Charlottesville' as Legal History." Saturday's closing reception will be held at Northwestern Pritzker School of Law. We are grateful, as ever, for the support of our partner institutions.

Please take this opportunity to register early. Early registration is available until October 19, but the Society is grateful for members' early registration as it helps us greatly in our planning. Our conference will take place in the Sheraton Grand Chicago, right in the heart of downtown. We kindly ask that you use the conference hotel, as registration there is important for the continued financial health of the society.

Further announcements and reminders will follow, but we invite you to peruse the program and register for the conference. As a reminder, registrants are required to demonstrate vaccination against COVID-19 (by presenting their vaccination card or a photo of it at the registration desk in Chicago), and are required to abide by the ASLH Policy on Professional Conduct.

-- Karen Tani

Swanson on Patents and "Useful Citizens" in the Antebellum US, Texas Republic of Texas and CSA

Kara W. Swanson, Northeastern University School of Law, has posted Beyond the Progress of the Useful Arts: The Inventor as Useful Citizen, which is forthcoming in the Houston Law Review:

There is a robust scholarly discussion about whether and how the United States patent system fulfills its constitutional directive to promote the progress of the useful arts. There is also increasingly a discussion that investigates extra-constitutional roles for the patent system, from signaling and credentialing to self-expression and bolstering nationalism. This Article expands our pluralistic vision of the patent system by exploring the ways in which the patent system has served to foster and identify what I call 'useful citizens', with the ability to participate in civic duties. As legislators and bureaucrats experimented with patent laws and practices in a struggling post-colonial country, they came to define the inventor-patentee in unique ways. A patent certified the originality and independent thought of the inventor, abilities defined as crucial for participation in democratic self-governance. I argue that this unacknowledged sociopolitical role for patents explains in part the persistence of the US patent system in the face of the long-running critique of its efficacy in promoting innovation and economic growth. Further, I argue that the ideology of inventor as useful citizen reveals the role of patents and invention in the historic restriction of full citizenship rights in the United States to white men and the continuing stakes of patent system participation as patents continue to be linked in the public imagination to American national identity.

To make this argument, this Article develops a comparative legal history among the early United States, the Republic of Texas (1836-46), and the Confederate States of America (1861-65), contrasting the US patent system to the patent systems in each of these imitative democracies formed by former US citizens. I analyze how these countries, engaged in desperate battles for survival, devoted scarce resources to establishing a patent office, briefly tracing the constitutional, legislative, and bureaucratic history of the Texas and Confederate patent systems. In each case, politicians looked to the US patent system as a model even as other patent systems, such as those of Britain and Mexico, offered examples seemingly advantageous to these cash-strapped and under-industrialized nations. I argue that the form each new patent system took demonstrated that the white men who created it believed, based on their US experience, in the inventor as useful citizen, and that the political context of these start-up republics explains their shared decision to implement patent systems that credentialed inventors as well as incentivized invention. Returning to US history, I demonstrate how using patents to identify useful citizens was linked to race and gender restriction of civil rights. In conclusion, I consider how the continued link of patents and citizenship offers possibilities for both the inclusive and exclusive mobilization of patents as group credentials.

--Dan Ernst

Sharafi on Abortion in South Asia

It was published some time ago but has just gone open access: Abortion in South Asia, 1860–1947: A medico-legal history, by former LHBlogger Mitra Sharafi, University of Wisconsin Law School, in Modern Asian Studies:

In the progression of stages toward unintended lives, the two stops on either side of abortion—contraception and infanticide—have been studied extensively by historians of South Asia. We know much less about abortion, particularly during the colonial period. Drawing upon published judgments, unpublished case records, forensic toxicology reports, and treatises on Indian medical jurisprudence, this article suggests that anti-abortion law was generally enforced in colonial India only when women died as a result of illegal abortions. This approach was contrary to the Indian Penal Code (IPC), which criminalized most abortions even when the women survived. The pattern was a continuation of the pre-IPC approach in India. This article explores possible explanations for the lax enforcement of anti-abortion law in South Asia during the late nineteenth and early twentieth centuries, considering abortion as experienced by South Asian and British women alike. It proposes as contributing factors: challenges in detection, the social movement for the protection of Hindu widows, colonial anxieties about false allegations of abortion among South Asians, the common phenomenon of imperial (British) husbands and wives living apart, and physicians’ desire to protect doctor–patient confidentiality. The article focuses on two key cases involving abortion: the Whittaker-Templeton case from Hyderabad (1896–1902) in which a British woman died following an abortion; and the Parsi matrimonial case of T. v. T. from Bombay (1927), in which a Zoroastrian woman alleged that her pharmacist husband had forced her to terminate three pregnancies by ingesting drugs.

–Dan Ernst

Schlegel's "While Waiting for Rain"

John Henry Schlegel, UB Distinguished Professor of Law and Floyd M. and Hilda L. Hurst Faculty Scholar at the University of Buffalo School of Law, has published While Waiting for Rain: Community, Economy, and Law in a Time of Change (University of Michigan Press):

What might a sensible community choose to do if its economy has fallen apart and becoming a ghost town is not an acceptable option? Unfortunately, answers to this question have long been measured against an implicit standard: the postwar economy of the 1950s. After showing why that economy provides an implausible standard—made possible by the lack of economic competition from the European and Asian countries, winners or losers, touched by the war—John Henry Schlegel attempts to answer the question of what to do.

While Waiting for Rain first examines the economic history of the United States as well as that of Buffalo, New York: an appropriate stand-in for any city that may have seen its economy start to fall apart in the 1960s, 70s, and 80s. It makes clear that neither Buffalo nor the United States as a whole has had an economy in the sense of “a persistent market structure that is the fusion of an understanding of economic life with the patterns of behavior within the economic, political, and social institutions that enact that understanding” since both economies collapsed. Next, this book builds a plausible theory of how economic growth might take place by examining the work of the famous urbanist, Jane Jacobs, especially her book Cities and the Wealth of Nations. Her work, like that of many others, emphasizes the importance of innovation for economic growth, but is singular in its insistence that such innovation has to come from local resources. It can neither be bought nor given, even by well-intentioned political actors. As a result Americans generally, as well as locally, are like farmers in the midst of a drought, left to review their resources and wait. Finally, it returns to both the local Buffalo and the national economies to consider what these political units might plausibly do while waiting for an economy to emerge.

Hardcover and paper publication is forthcoming, but the book is already available “open access and free to read on the web Funding is provided by the Andrew W. Mellon Foundation, as part of the Sustainable History Monograph Pilot.”  You may now or soon read it on JSTOR, Project Muse, OAPEN, ScienceOpen, and Internet Archive.

--Dan Ernst