Friedman's "Law, Science, and Technology" and "Personal Identity in the Modern World"

Rowman & Littlefield has published Law, Science, and Technology: Historical and Social Context (May 2023), by Lawrence M. Friedman (Stanford Law School). A description from the Press:

Through a series of historical analyses, Friedman explores the relationship between the legal system and the development of modern science and technology. The scientific revolution produced major changes in culture; and these in turn led to changes in government and law. The book covers, among other topics, the transportation revolution; the camera and the entertainment industry; the “germ theory” and its influence on modern society; and the role of culture and technology in the sexual revolution.

A selection of advance praise:

Why does the law change? In a discussion that is somehow both erudite and fun to read, drawing on case studies ranging from cars to cameras to vaccines, Lawrence Friedman persuasively suggests that technological developments lead to cultural transformations, which in turn produce changes in the law. Anyone interested in the relationship between law and technology will want to read this book. -- Stuart Banner

Friedman has written a wonderful book that investigates the intertwined nature of law, science and technology, and the role played by law in a modern complex society. As is true for all Friedman’s books, he presents a social history that is accessible to lay persons as well as legal history devotees. As a reader, you are drawn in by the stories that shed light on dramatic cultural and legal change. -- Joyce Sterling

Also of note: Friedman's Personal Identity in the Modern World: A Society of Strangers, published by Rowman & Littlefield in August 2022:

In a society of strangers, there develops what can be called crimes of mobility -- forms of criminality rare in traditional societies: bigamy, the confidence game, and blackmail, for example. What they have in common is a kind of fraudulent role-playing, which the new society makes possible. This book explores the social and legal consequences of social and geographical mobility in the United States and Great Britain from the beginning of the 19th century on. Personal identity became more fluid. Lines between classes blurred. Impostors abound.

A selection from the blurbs:

On a sweeping canvas that covers two centuries of legal and literary history, eminent historian Lawrence Friedman shares his observations about the power of mobility—both geographic and social—to transform personal identity. During the 19^th century, the United States morphed from a collection of face-to-face local communities into an anonymous, urbanized nation in which men and, to a lesser extent, women could alter their socioeconomic status, their religion, and even their perceived race, along with their place of residence. But the potential to craft new identities also raised the disconcerting prospect that people were not who they seemed and that, beneath the veneer presented to the outside world, deviance and criminality might lurk. America and Great Britain gradually shed repressive Victorian norms in favor of “expressive individualism,” but prisons and other institutions developed for law-breakers and the poor continued to exert control. Friedman concludes with the insight that 21^st-century globalization and technology have created a new type of village that sacrifices privacy for connectedness. His latest book makes an entertaining and thought-provoking read. -- Carolyn B. Ramsey

-- Karen Tani 

Legal History in the 28th Annual Clifford Symposium on Tort Law & Social Policy

This past spring, the DePaul Law Review published papers from the 28th Annual Clifford Symposium on Tort Law and Social Policy. The theme of the symposium was "Litigating the Public Good: Punishing Serious Corporate Misconduct." There are a few pieces that may be of interest to LHB readers: 

"'A Force Created': The U.S. Chamber of Commerce and the Politics of Corporate Immunity," by Myriam Gilles (Cardozo School of Law). An excerpt from the Introduction (footnotes omitted):

Upon its founding in 1912, the U.S. Chamber of Commerce was conceived as a “force created” to exert “a beneficent influence upon our national life” by integrating the views of the business community into governmental policies and regulations. That a force was created is beyond question. Beneficence is a separate issue.

This is the story of how the Chamber transformed from that early vision of a public-minded, apolitical organization intent on providing “enlightened economic policymaking advice . . . for the benefit of the nation” into its current form—a partisan enterprise focused on securing, among other things, broad and lasting corporate immunity from suit.

"Crime and Tort: Reflections on Legal Categories," by Alexandra D. Lahav (Cornell Law School). An excerpt from the Introduction: 

This Essay investigates how a particular category of torts—suits for injuries caused by dangerous products—has been seen alternatively as based in contact or criminal law—in addition to, or sometimes instead of, an independent doctrine sounding in tort that arises from a duty not to harm others. This category problem has plagued courts even though, since the 1850s, courts have held that manufacturers had a duty enforceable by private suit not to sell harmful products. The Essay tells the story of regulation of one very dangerous product, milk, in the late nineteenth century as a window into the meaning of how conduct is categorized—the significance of putting torts at the periphery rather than the center. The meanings of legal categories map on to conceptions about how society should be governed that continue to be at the heart of many doctrinal and policy debates today. These include: how much should private ordering govern? To what extent should harm lie where it falls, especially when it comes to untested or untried products, and in what cases should manufacturers be held responsible for harm? What kind of fault is in play in the sale and distribution of harmful products and is this something to be policed by purely public entities or by the individuals harmed or both? Should there be an intent requirement, or is a showing of causation sufficient? What institutions—criminal, public health, or civil justice—are best situated to provide redress in cases where people are harmed?

-- Karen Tani

Weekend Roundup

• Rebecca Nesvet, University of Wisconsin, Green Bay, has published Walking Aslant: Irene Adler Visits the Inner Temple, in Nineteenth-Century Gender Studies 19.2 (Summer 2023).  It is Professor Nesvet's reading of Sir Arthur Conan Doyle’s first Sherlock Holmes short story, “A Scandal in Bohemia” (1891), in which Irene Adler, “identified by some scholars as a transgender figure,” visits “the exclusively cisgender male space of the Inner Temple” in what amounted to “a queer self-liberatory act, as well as a transgression of fin-de-siècle society’s mores and laws.” 
  

• Mary Bilder, Founders Professor at Boston College Law School, is one of  four finalists for the $50,000 George Washington Prize, for Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution (University of Virginia Press, 2022).
  

• Natasha Wheatley, the author of The Life and Death of States, in conversation about the Central Europe and the transformation of modern sovereignty from empire to democracy" (Literary Hub).
  

• UCLA Law has issued press releases about two legal  historians.  Ariela Gross joins as a Distinguished Professor in a lateral hire.  Alexander Arnold, “whose scholarship uses tools of intellectual and legal history to explore the relationship between law, economic theory and social facts,” joins as an assistant professor of law.
  

• 

  (Credit: DRE)
  

  We were not aware of Reykjavik's Monument to the Unknown Bureaucrat (right) until a recent visit to Iceland.
  

• Oliver Diggelmann, University of Zurich, reviews Anne Orford ‘s International Law and the Politics of History.
  

• Dame Helen Winkelmann, Chief Justice of New Zealand, discusses the history of Canterbury Law School in her recent address, Keep Running Up That Hill.
  

• Here is a quite useful compendium of online collections and archives on radicalism. 
  

• The FDR Library "will present a conversation and book signing with Mary E. Stuckey, author of Voting Deliberatively: FDR and the 1936 Presidential Campaign, at 6:00 p.m. on Wednesday, August 9, 2023."

• It's "the end of an era" for "Made by History." This valuable outlet for historically informed opinion pieces will no longer be part of the Washington Post, but may continue with another publishing partner. Read more from the editors here.
  

• ICYMI:  The Most Corrupt Judge in US History (Time).  B.C. Franklin and I.H. Spears and the long fight for restitution for the Tulsa Race Massacre (NYT).  How the annual Critical Race Theory Summer School of the African American Policy Forum and its co-founder Kimberlé Williams Crenshaw are dealing with book bans, the censorship of Black history, and the Supreme Court’s affirmative action decisions (Essence).
  

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

Robilant's "Making of Modern Property"

Anna di Robilant, Boston University, has published The Making of Modern Property: Reinventing Roman Law in Europe and its Peripheries 1789–1950 (Cambridge University Press):

In this original intellectual history, Anna di Robilant traces the history of one of the most influential legal, political, and intellectual projects of modernity: the appropriation of Roman property law by liberal nineteenth-century jurists to fit the purposes of modern Europe. Drawing from a wealth of primary sources, many of which have never been translated into English, di Robilant outlines how a broad network of European jurists reinvented the classical Roman concept of property to support the process of modernisation. By placing this intellectual project within its historical context, she shows how changing class relations, economic policies and developing ideologies converged to produce the basis of modern property law. Bringing these developments to the twentieth century, this book demonstrates how this largely fabricated version of Roman property law shaped and continues to shape debates concerning economic growth, sustainability, and democratic participation.

--Dan Ernst

Judge Calabresi in Conversation about Justice Black

The Supreme Court Historical Society’s 2023 Constitution Day Program is a Zoom conversation with the  Honorable Guido Calabresi and Professor Norman L. Silber on September 14, 2023 at 12:00 p.m. (ET) on Judge Calabresi’s clerkship with Justice Hugo Black in the October 1958 term..  It will draw from the recently published two-volume oral history, Outside In, which prompted our symposium earlier this summer. Register here.

--Dan Ernst

JSCH 48:2

The Journal of Supreme Court History 48:2 has now been published online.  Here is the TOC:

Introduction

Timothy S. Huebner

Senator Charles Sumner and the Admission of John S. Rock to the Supreme Court Bar
Christopher Brooks

Justice Robert H. Jackson "Arrives" in Washington
G. Edward White

Court-packing in Context
Barry Cushman

FDR’s Court-packing and the Struggle for Civil Rights
Zach Jonas

Fortas' Nominations: One Era Ends, Another Begins
Michael Nelson

Is There a Way Out of the Counter-majoritarian Difficulty?
William Domnarski

I am very pleased to note that Mr. Jonas wrote the first drafts of his article at Georgetown Law in my seminar on the legal history of the New Deal.  His article illuminates a surprisingly understudied topic, the African American response to the Court Packing plan, which was complicated, in part by the pendency of an anti-lynching bill in Congress and in part by divisions between Black liberals and radicals.  He and I are both grateful to Laura Kalman for her reading of a draft.

--Dan Ernst

CFP: Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

Via H-Net, we have the following announcement:

Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

David Schorr

Susan Bartie (ANU), Ben Pontin (Cardiff), and I are organizing a double session on environment, law, and history for the 4th World Congress of Environmental History, to be held (in hybrid format) in Oulu, Finland, 19-23 August 2024. This double session will showcase environmental-legal-historical research that demonstrates the opportunities as well as the challenges inherent in this meeting of disciplines, and discuss strategies, theories, and research methods that might help in overcoming these challenges. The sessions' abstract is below.

If you're interested in joining (in person or remotely, you need not decide now), please submit a proposal through this link by 18 September 2023. Please indicate in your submission whether you wish to propose a traditional research paper (the first session) or make a presentation as part of the roundtable (second session).

Abstract:

The triangle ‘environment–history–law’ suggests a wealth of opportunities for productive transdisciplinary scholarship: Historical analysis of environmental law, environmental histories of legal change, legal histories of the environment, etc. Yet such transdisciplinary projects have to date been tentative and largely tangential to the thriving fields of environmental history, legal history, and environmental law. Legal history, while having moved beyond its previously narrow focus on legal doctrine to embrace wider contexts of society, economy, and culture, has to date remained largely indifferent to environmental issues or to the environment as a category of analysis. The field of environmental law, so salient in pressing issues such as climate change and biodiversity conservation, tends to see itself as brand new, overlooking centuries of environmental laws. And while environmental histories frequently reference legal issues and institutions, from common property to rights of nature, they are often insensitive to the legal context in which these institutions operate.

The first session will showcase new environmental-legal-historical research that demonstrates both the opportunities and challenges inherent in this meeting of disciplines. The following, roundtable session will bring together scholars working across the boundaries of environment, history, and law, in order to discuss the challenges facing this intersection of disciplines, from institutional obstacles to the difficulty in meshing historical and normative analysis. With the participation of the audience, it will seek to identify strategies, theories, and methods that might help in overcoming these challenges. Panelists will be drawn from a variety of disciplines, regions, and methodological approaches.

Contact Email

- Karen Tani

Selden's Sister Celebrate Celebrating Women in Legal History

[We have the following announcement.  DRE]

Selden's Sister presents the symposium “Celebrating Women in Legal History: The Lives and Legacies of Early Women Legal Historians” at the School of Law and Social Justice Building, The University of Liverpool on September 1, 2023.  

Selden’s Sister are a collaborative body of legal historians across multiple UKHE institutions. We seek to champion the work of contemporary female legal historians, and highlight past contributions of women to legal history. This SLS-funded, one-day hybrid symposium aims to celebrate the contributions of women to early legal historical scholarship, to commemorate the achievements of under-appreciated figures in legal history, and to assess their contributions in light of present understandings of the discipline.

Programme:

11:00-11:15 Opening Remarks: Dr Lorren Eldridge

11:15-12:30 Panel One: Pathbreakers in Legal History

Dr Fleur Stolker (University of Oxford):  Dame CV Wedgwood and the trial of Charles I

Christine George (New York University Law Library): Missing Mildred Miles

Dr Anne Logan (University of Kent): Rights and Duties of Englishwomen: the life and work of Erna Reiss (1888-1974?)

Cheryl Warden (University of Stirling) and Anna Pavicic (University of Stirling)

Chair: Professor Gwen Seaborne

12:30-13:15 Lunch

13:15-14:30 Panel Two: Women Working Together

Dr Jennifer Aston (Northumbria University) and Prof. Olive Anderson (deceased, Westfield College):  For Wives Alone: Economic Divorce in mid-nineteenth century England and Wales

Dr Sharon Thompson (University of Cardiff):  Family Law Reformists as Feminist Legal Historians: The Married Women’s Association

Taylor Starr (Yorke University, Canada): Epistemological Acquiescence: Women and Feminist Legal Theory in Canadian Law Faculties, 1961-1994

Associate Professor Valentina Cvetkovic Ðordevic and Assistant Professor Nina Kršljanin (University of Belgrade): Women scholars in legal history at the university of Belgrade faculty of law

Chair: Rihannon Ogden Jones

14:30-14:45 Tea/ Coffee Break

14:45-16:00 Panel Three: Stair’s Sister: Celebrating Women in Law in Scotland

Professor Maria Fletcher (University of Glasgow):  The ‘Women in Law’ Project and Dialogues about the Past, Present and Future: Feminist Theory and Method in Practice.

Dr Charlie Peevers (University of Glasgow):  Alternative Visions of International Law, War and Peace: Women, Scotland and Global Order in the early 20th century

Dr Rebecca Mason (Scottish Parliament): Shadow economies of Scottish women’s legal work

Lisa Cowan (University of Edinburgh):  Aere perennius: The Life and Legacy of Professor Olivia Robinson

Chair: Dr Sarah White

16:00-16:15 Tea/ Coffee Break

16:15-17:30 Roundtable Discussion: Women in Legal History Now

Professor Chantal Stebbings (University of Exeter)

Professor Catherine Macmillan (King’s College London)

Professor Rebecca Probert (University of Exeter)

Chair: Dr Joanna McCunn

17:30-17:45 Closing Remarks: Dr Emily Ireland

17:45-18:45 Drinks Reception 

A Symposium for James Oldham

James Oldham (GULC)

In 2020, James Oldham, the St. Thomas More Professor of Law and Legal History at the Georgetown University Law Center, took emeritus status after fifty years on the faculty.  Last January, with the help of a dozen legal historians, Georgetown Law celebrated his career with the symposium, “James Oldham: The Love and Labor of Archival Research.”  Last week, while we were away, revisions of the remarks delivered on that occasion were published in The Docket, the online supplement to Law and History Review.  Last week, many LHB readers will have spotted Gautham Rao’s announcement, as Editor-in-Chief of LHR, on social media of the publication of the symposium, but we note it here as well to ensure that our other readers know of it too.

–Dan Ernst

Tirres on the Unfinished Revolution for Immigrant Civil Rights

Allison Brownell Tirres, DePaul University College of Law, has posted The Unfinished Revolution for Immigrant Civil Rights, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:

The Supreme Court’s landmark 1971 decision in Graham v. Richardson, which declared noncitizens to be a “discrete and insular minority” under the Equal Protection Clause, catalyzed an extraordinary era of litigation in support of the civil rights of noncitizens. Noncitizens and their attorneys succeeded in overturning hundreds of discriminatory laws through court challenge or legislative lobbying, drawing directly on a tradition of Black civil rights advocacy. They transformed the doctrine of equal protection, convincing courts that aliens should be protected from invidious state discrimination. Yet after just a few years, the inclusion of noncitizens in equal protection doctrine took a surprising turn, as the Court backtracked from expansive protections and created an exceptional “dual standard” for alienage discrimination. As a result, noncitizens were pushed outside the fold of robust Fourteenth Amendment protection. Today, states continue to bar immigrants – both documented and undocumented – from a wide range of professions, economic activities, and forms of political engagement, based on their lack of citizenship. This article is the first legal history to examine equal protection doctrine as it relates to noncitizens during this pivotal era. Drawing on extensive primary source material from the archives of advocacy organizations, the papers of Supreme Court Justices, and more, the article looks at the development of doctrine from the standpoint of the litigants and lawyers who made the movement. In so doing, it provides crucial context for understanding the history of the Equal Protection Clause and the continued struggles for immigrant rights today.

--Dan Ernst

Foster on the Express Trust

David Foster, University College London Faculty of Laws, has posted Historical Conceptions of the Express Trust, c 1600-1900, which is forthcoming in Philosophical Foundations of the Law of Trusts, ed. Degeling, Simone and Hudson, Jessica and Samet, Irit, a volume in the Oxford University Press's series, Philosophical Foundations of Law,

This chapter discusses the historical and analytical conceptions of the express trust in the period c 1600 – 1900. Particular emphasis is placed upon the historical conception of the trust as a ‘confidence annexed in privity’ and the slow reification of the beneficiary’s right under a trust in the case law and treatise literature of the period. This aspect of the trust’s history is explored through the development of rules governing the exigibility and enforceability of the beneficiary’s right and provides historical context to the more analytical treatments of the trust in the mid-to-late nineteenth century. The chapter concludes with a consideration of the significance of the school of analytical jurisprudence in shaping modern conceptions of the trust – most notably by applying the language of rights in rem and rights in personam to equitable rights. 

--Dan Ernst

McFarlin on Mark Twain and Mary Ann Cord

Timothy McFarlin, Samford University Cumberland School of Law, has posted three papers, one coauthored, about Mark Twain and Mary Ann Cord, a freedwoman whose story Twain told in an article in The Atlantic.  As the abstract for one of the articles explains, they address the questions:

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the telling of how enslavers tore her family apart and how her son returned years later, as a Union soldier, to liberate her from bondage? If so, could that long-ignored infringement be remedied today?

In answering those questions, Professor McFarlin writes, the articles provide

wide-ranging insights into how the doctrines of consent, estoppel, laches, abandonment, adverse possession, escheat, and the statute of limitations apply in copyright law. Cord's case—nearly a century-and-a-half-old but examined for the first time in this project—can also help chart a course for how to address other longstanding wrongs in intellectual property and beyond. This includes those raised in recent lawsuits against Harvard for its exploitation of enslaved people's images and Tulsa for the 1921 race massacre on Black Wall Street.

The first article, A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship, is forthcoming in the Journal of the Copyright Society of the U.S.A.  The second, A Copyright Restored: Mark Twain, Mary Ann Cord, and How to Right a Longstanding Wrong, appears in the Wisconsin Law Review.  The third article, coauthored with his Samford Law colleague Alyssa A. DiRusso, is Identity Appropriation and Wealth Transfer: Twain, Cord, and the Post-Mortem Right of Publicity.

--Dan Ernst

ASLH 2023

Have you registered for the 2023 Annual Meeting of the American Society for Legal History?  It will take place in Philadelphia, October 26-28.  You may also reserve a room at the conference hotel, Sheraton Philadelphia Downtown.

--Dan Ernst

Akande's "Entangled Domains"

Rabiat Akande, Osgoode Hall Law School, York University, has published Entangled Domains: Empire, Law and Religion in Northern Nigeria (Cambridge University Press, 2023):

Set in Africa’s most populous Muslim country, the book takes on a paradox: colonial governance in Northern Nigeria entailed indirect rule through Muslim intermediaries and caliphate institutions; yet, the state insisted on its secularity. In unravelling this puzzle, the book offers a provocative account of secularism as a contested yet contingent mode of governing and religious difference. Drawing on detailed archival research, the book illustrates constitutional struggles triggered by the colonial state’s governance of religion and interrogates its legacy in the postcolonial state. The book illuminates the dynamic interplay between law, religion, and power in the political context of the modern state’s unique emergence from colonial processes.

--Dan Ernst

LHR 41:2

Law and History Review 41:2 has been published.  It is a remarkable, guest-edited collection of articles on Law, Courts, and Constitutions in Twentieth-Century South Asia, four of them published open access.

Law, Courts, and Constitutions in Twentieth-Century South Asia
Saumya Saxena, Alastair McClure

The Drafting of the Constitution of the Union of Burma in 1947: Dominion Status, Indo–Burmese Relations, and the Irish Example
Donal K. Coffey

Nepal's Constitutional Foundations between Revolution and Cold War (1950–60)
Mara Malagodi

Constitutions and Modernity in Post-Colonial Afghanistan: Ethnolinguistic Nationalism and the Making of an Afghan Nation-State
Elisabeth Leake

Negotiating Nationhood: Constitutional Warfare, International Law, and the Birth of Bangladesh
Cynthia Farid

Policing Sati: Law, Order, and Spectacle in Postcolonial India
Saumya Saxena

Killing in the Name Of? Capital Punishment in Colonial and Postcolonial India
Alastair McClure

Mergers and Legal Fictions: Coverture and Intermarried Women in India
Leilah Vevaina

Courts and Constitutions in South Asia and the Global South: A View from the Middle East
Faiz Ahmed 

--Dan Ernst

Weekend Roundup

• 
  Congratulations to Norma Dawson, CBE and professor of law emerita at Queens University Belfast, for the conferral upon her of an honorary doctorate by the University of Edinburgh.  Professor Dawson is a past president of the Irish Legal History Society and the author of A Modern Legal History of Treasure (Palgrave Macmillan, 2023), which “examines treasure law and practice from the rise of the new science of archaeology in the early Victorian period to the present day.”
  

• Over at Rechtsgeschiedenis Blog,Otto Vervaart has put up a very useful post on digitized archival collections on JSTOR of interest to legal historians, starting with the holdings of the Borthwick Institute for Archives at the University of York.

• Congratulations to Nina Farnia, Albany Law School, corecipient (with Sabarish Suresh, National University of Singapore) of the Julien Mezey Dissertation Prize of the Association for the Study of Law, Culture, and the Humanities for her dissertation, “Imperialism in the Making of U.S. Law,” which Professor Farnia completed in the history department at UC Davis! 
  

• Now out over at JOTWELL: assessments of Gregory Ablavsky and W. Tanner Allread, We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution, 123 Colum. L. Rev. 243 (2023) by Bethany Berger and Allison Brownell Tirres.
  

• Kenneth W. Mack, Harvard Law, reviews Jonathan Eig’s new biography of Martin Luther King (Guardian).

• "The Franklin D. Roosevelt Presidential Library and Museum and the Mid-Hudson Antislavery History Project will present a conversation and book signing with Albert M. Rosenblatt, author of The Eight: The Lemmon Slave Case and the Fight for Freedom, at 6:00 p.m. on Wednesday, July 26, 2023. The event will be held in the Henry A. Wallace Center at the FDR Presidential Library and Home and streamed live to the official FDR Library YouTube and Facebook accounts."  More.

• "A museum that tells the history of the Clotilda — the last ship known to transport Africans to the American South for enslavement — opened [recently], exactly 163 years after the vessel arrived in Alabama’s Mobile Bay" (AP).
  

• The articles from that symposium on the history of the Administrative Procedure Act are now out in the Notre Dame Law Review, as we learned from Emily Bremer here.
  

• Lawbook Exchange has released its July 2023 catalogue, which includes a first American edition of Isaac Espinasse's Reports of Cases Argued and Ruled at Nisi Prius (1795).
  

• ICYMI: Jamelle Bouie and Peter S. Canellos on John Marshall Harlan.  Madame Restell and the history of abortion in America (Concord Monitor).  Harvey Mansfield retires (Harvard Crimson).  NARA up close and personal (NYT).  Steve Fraser on the new [pro-]child labor laws (Jacobin).  "Judges Confused by Supreme Court's Historical Test for Gun Laws" (Bloomberg Law).  So are we.
  

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

Ishitani Receives SCHS Early Career Research Grant

[We have the following announcement.  DRE]

The Supreme Court Historical Society is proud to announce that Michael "Henry" Ishitani is the inaugural recipient of the Henry J. Abraham Early Career Research Grant for research on the history of the United States Supreme Court.  "Supporting emerging scholars in legal history is an important aspect of our mission," said James C. Duff, the Society's Executive Director.

Ishitani, a student in the Yale Law School & History Ph.D. Program, is researching the Chase Court's rejection of the legal mechanisms designed to exclude ex-Confederates from power, part of a larger project on "democratic disqualification" in the history of the United States.  Ishitani's initial research has found that Chief Justice Salmon P. Chase and Associate Justice Stephen J. Field played pivotal roles through their anti-disqualification decisions, including Cummings v. Missouri (1866), Ex parte Garland (1866), the Case of Davis (1867), and Griffin's Case (1869).  These rulings, Ishitani argues, planted the seeds for the restoration of white supremacist power throughout the South, well before the Court's opinion in the Slaughterhouse Cases narrowed the scope of the Privileges and Immunities Clause.

"I am thrilled to have received the Abraham Early Career Research Grant," said Ishitani.  "It feels like such a great vote of career confidence from a journal whose articles I have long relied upon and enjoyed."

The Henry J. Abraham Early Career Research Grant is named for the distinguished scholar whose numerous works on constitutional law and the judicial process have had an enduring impact on the field of Supreme Court history.  Awarded on a competitive basis in June of each year, the $1,000 grant supports the research of those who are pursuing academic careers in legal history, including graduate students, law students, and those who are no more than five years from completion of either the Ph.D. or J.D.  

The award is given on the basis of the applicant's potential for producing publishable work in the field of Supreme Court history, and the grant recipient will be expected to produce an article for submission to the Journal of Supreme Court History.

Siegel on How Dobbs Weaponized Brown

Reva Siegel, Yale Law School, has posted How Dobbs Weaponizes Brown: The Roots of Dobbs’s History-and-Tradition Method in the Defense of Segregation, which is forthcoming in the Yale Law Journal:

In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority for its decision to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—omissions that enabled the Court to weaponize Brown as authority for overturning Roe.

Dobbs interpreted the Constitution’s liberty guarantee by counting state laws that banned abortion at the time of the Fourteenth Amendment’s ratification. In doing so, Dobbs employed a method of interpreting the Amendment popularized by those who opposed Brown. They defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868. Brown repudiated this tradition-entrenching method of interpreting the Amendment and called upon the nation to align its practices with its constitutional ideals.

Examining the history Dobbs omitted helps us think critically about the justifications Dobbs offered for its method of interpreting the Fourteenth Amendment. Dobbs argued that its use of state counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee provided an objective standard that prevented interpreters from reasoning from their values and so protected democracy in the states. The history this Essay examines refutes each of these claims. Counting states that segregated education (or banned abortion) in 1868 was not a neutral or objective measure of the Constitution’s meaning; it expressed the interpreters’ values by perpetuating exclusions of the past into the future. The democracy it supported was a thin majoritarianism, democracy without rights that would protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi show how the liberty and democracy Dobbs protects perpetuate and entrench inequalities of 1868.

By reconstructing the lineage of arguments that state laws in 1868 are proxies for the original understanding, we can see how early forms of originalism and Dobbs’s history-and-tradition method grew out of resistance to Brown and backlash to the Warren and Burger Courts. Debate over Brown posed core questions about fidelity to the Constitution. We renew and sustain that debate on Brown’s seventieth anniversary as we ask how claims on the constitutional memory of Brown relate to its constitutional history.

--Dan Ernst

Davis on Caribbean Comparative Legal History

Kevin E. Davis, New York University School of Law, has posted Haiti and the Uses of Comparative Legal History in the Caribbean:

This essay uses the history of Haiti’s constitution as a launching point for examining the challenges and opportunities inherent in studying comparative legal history in the Caribbean. It begins by explaining why the Caribbean’s remarkable diversity, along multiple dimensions, makes it a useful site for comparative legal history. The following sections illustrate the argument by explaining how a comparative historical approach can shed light on the relationship between law and three social processes implicated by the Haitian Constitution of 1805: state formation, recognition and expansion of citizenship, and economic development. 

--Dan Ernst

Drummond's "The Watchdog"

Steve Drummond has published The Watchdog: How the Truman Committee Battled Corruption and Helped Win World War Two (HarperCollins)

Months before Pearl Harbor, Franklin D. Roosevelt knew that the United States was on the verge of entering another world war for which it was dangerously ill-prepared. The urgent times demanded a transformation of the economy, with the government bankrolling the unfathomably expensive task of enlisting millions of citizens while also producing the equipment necessary to successfully fight—all of which opened up opportunities for graft, fraud and corruption.

In The Watchdog, Steve Drummond draws the reader into the fast-paced story of how Harry Truman, still a newcomer to Washington politics, cobbled together a bipartisan team of men and women that took on powerful corporate entities and the Pentagon, placing Truman in the national spotlight and paving his path to the White House.

Drawing on the largely unexamined records of the Truman Committee as well as oral histories, personal letters, newspaper archives and interviews, Steve Drummond—an award-winning senior editor and executive producer at NPR—brings the colorful characters and intrigue of the committee’s work to life. The Watchdog provides readers with a window to a time that was far from perfect but where it was possible to root out corruption and hold those responsible to account. It shows us what can be possible if politicians are governed by the principles of their office rather than self-interest.

A recording of Mr. Drummond’s book event at Politics and Prose is here.

--Dan Ernst

Blumm's "American Legal History in a Nutshell"

Michael C. Blumm, Lewis & Clark Law School, has published A Brief American Legal History in a Nutshell (West):

A Brief American Legal History is an accessible survey of the law throughout American history, written for lawyers and law students without an historical background as well as for those interested in American history without law school training.

The book begins with the English influence on American law, then considers how law affected the split between two countries; how slavery was a bedrock economic principle by the revolutionary era; how lawyers influenced the Constitution; how the law accommodated the transportation revolution of the early 19th century; and how it failed to avoid—and perhaps exacerbated—the sectional conflict that led to the Civil War.

The book proceeds to explain how the Supreme Court enfeebled the Civil War constitutional amendments and ratified post-Reconstruction “Jim Crow” laws maintaining racial segregation not only of Blacks but also Asians. Also examined is how the conservative Court and invoked constitutional law to challenge efforts to enact wage and hour labor legislation and ratified the “special status” of women while denying them the right to vote, hold office, or enter professions. One of the features of the book is that it surveys common law developments throughout American history.

In the 20th century, the Court stopped vetoing socio-economic legislation, and the political process revolutionized labor law during the New Deal. In the 1960s, the Warren Court not only held state segregation unconstitutional, it bolstered rights to a free press, and established individual liberties in privacy, criminal procedure, and the right to vote. From the 1970s until into the 21st century, courts generally upheld the environmental law revolution, although the Roberts Court has recently erected what may be substantial obstacles, recalling the Court’s impediments to labor legislation in an earlier century.

The 21st century conservative Court constitutionalized unlimited campaign contributions, recognized individual gun possession, crippled voting rights legislation, erected new protections for religious liberty, and allowed partisan gerrymandering, to say nothing of stopping a recount in the presidential vote, thereby in effect appointing a president. And, of course, the Court’s new supermajority’s bombshell was its overruling of the right to abortion in 2022. The Court’s new reliance on a “shadow docket” has allowed it to intervene in a variety of controversies without issuing opinions, drawing criticism as a threat to democratic decisionmaking. The intersection of law and politics, a theme throughout the book, has never been more apparent.

Now Online: Touro's Frankfurter Conference

The recording of that conference, The Life, Work & Legacy of Felix Frankfurter, held at the Touro Law Center last April, is now available online at Touro Law’s website.  Speakers at the first session were Touro Law Dean Elena Langan, Judge Jed Rakoff; John Q. Barrett; the late R. B. Bernstein; and Tiffany Graham.  Speakers at the second were Mark A. Graber, Jeremy Kessler, and John F. Witt.  Brad Snyder, my Georgetown Law colleague and the author of Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, delivered the keynote and took questions thereafter.  Speakers at the third session were William Nelson, Noah A. Rosenblum, Helen Knowles-Gardner, and Rodger Citron.

--Dan Ernst

Weekend Roundup

• Over at Balkinization, the symposium on Christian Fritz's Monitoring American Federalism has concluded. A round-up of all the posts is available here. 
  

• There a new National Constitution Center podcast: “In a special Independence Day episode, scholars Akhil Amar of Yale Law School and Peter Onuf of the University of Virginia join host Jeffrey Rosen for a discussion on the historical legacy of founding father Thomas Jefferson.”
  

• 
  Kathryn Schumaker’s article in Law and History Review, "Unlawful Intimacy": Mixed-Race Families, Miscegenation Law, and the Legal Culture of Progressive Era Mississippi, is now available open access.
  

• The Lillian Goldman Law Library at the Yale Law School has announced the "Drew Days III Archive in collaboration with LLMC Digital. This resource contains speeches, remarks, and interviews by Days."
  

• The July 2023 issue of the Newsletter of the Historical Society of the DC Circuit is available here. 
  

• "The Georgetown Center for the Constitution awards its sixth annual Thomas M. Cooley Book Prize of $50,000 to Walter Stahr for his book, “Salmon P. Chase: Lincoln’s Vital Rival” (Simon & Schuster, 2022)."
  

• Congratulations to Naomi Jewel Mezey, Georgetown Law, upon her receipt of 2023 James Boyd White Award from the Association for the Study of Law, Culture, and Humanities at the annual conference in Toronto, Canada on June 22.  The award recognizes "scholarly originality and excellence and commitment to the field of law, culture, and the humanities.”
  

• ICYMI:  Penn Carey Law announces the start of Sophia Z. Lee's deanship.  Martha S. Jones on “Why Republicans Keep Calling for the End of Birthright Citizenship” (The Atlantic).  Gregory Ablavsky on the Brackeen Indian Child Welfare Act Decision (SLS Blog).
  

• Was nun, constitutional historian?  A widely read thread by Rachel Sheldon, Penn State, prompted by the use of history in recent Supreme Court decisions.

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

Wallace on Canada's Power to Detain and Deport

Simon Wallace, York University Osgoode Hall Law School, has posted “Police Authority is Necessary”: The Canadian Origins of the Legal Powers to Detain and Deport, 1893-1902, which appears in the Queen’s Law Journal:

When and why did Canada develop the legal powers to detain and deport immigrants? At the beginning of the twentieth century, Canada did have legal powers authorizing deportations, but the laws lay as inactive dead letters. After a significant American diplomatic effort to establish a continental immigration exclusion program, initially resisted by Canadian corporate and state actors, Canada activated immigration police powers in the summer of 1900. After extensive archival research, this legal history shows that the government endorsed immigration police powers when it appeared that Canada was the destination for thousands of Jewish Roumanian refugees and that the Americans planned to set up extensive border controls along the Canadian-American frontier. From there, Canada quickly developed and enhanced its immigration policing powers and laws to forestall American economic sanctions. This article considers how government, corporate interests, international law, and American interest combined to eventually lead to the passage of a 1902 law that firmly established Canada’s right to arrest, detain, and deport undesirable immigrant.

--Dan Ernst

Pillai on German Federalism and the Indian Constitution

Sarath Pillai’s new article, German Lessons: Comparative Constitutionalism, States’ Rights, and Federalist Imaginaries in Interwar India is available open access in Comparative Studies in Society and History:

This article reveals the hold that German history and constitutionalism had on Indian federalists in the interwar period. A range of federalists from Indian princely states and British provinces, eager to see India become a federation rather than a unitary state fashioned on the English model, looked to Imperial Germany for constitutional lessons. They saw in German history and constitutionalism a federal solution to the so-called “Indian problem,” wherein the rights of the states would be primary over those of individuals or groups. This German-inspired federal tradition, I argue, departed not only from political pluralism and association-based federalism, but also from the nationalist vision of placing individual rights over state rights. This article presents an alternative genealogy of comparative constitutional thought in India, and examines a post-national worldview that sidestepped the nation-states. By bringing a comparative approach to bear on political and constitutional histories, it escapes the national insularity that often characterizes such histories in colonial India, and places them in the comparative and global context of the interwar circulation of federalist ideas. German-inspired federal ideas of the period offer a counterpoint to corralling futuristic visions of India, and its founding, on the twin axes of anticolonial nationalism and popular sovereignty to the exclusion of state-centric ideas articulated by the princely states.

--Dan Ernst

John Wunder (1945-2023)

John Wunder (credit)

We noted the passing of John R. Wunder late last month and now have an obituary, courtesy of the University of Nebraska, where he was professor emeritus of history.  We recall him from his many appearances at the American Society for Legal History as an important, prolific, but approachable legal historian of the Great Plains and the American West and their indigenous peoples.  His publications include Inferior Courts, Superior Justice: A History of the Justices of the Peace on the Northwest Frontier, 1853-1889 (1979); “Retained by the People”: A History of American Indians and the Bill of Rights (1994), and Gold Mountain Turned to Dust: Essays on the Legal History of the Chinese in the Nineteenth-Century American West (2018); and the edited collections Native American Sovereignty (1996); Americans View Their Dust Bowl Experience (1999); The Nebraska-Kansas Act of 1854 (2008); and Echo of its Time: The History of the Federal District Court of Nebraska, 1867-1933 (2019).

On Twitter, his students have remembered him as “wise, encouraging,  kind and generous” and “a source of so much goodness in the world.”

--Dan Ernst

The Amendments Project

 [We have the following announcement.  DRE]

The Amendments Project at Harvard University releases a searchable digital archive of the full text of nearly every significant proposed amendment to the Constitution since it was drafted in 1787. Tens of thousands of amendments are included in the archive — the first of its kind.  Contact: info@amendmentsproject.org.  857-777-8261

 Monday, July 3, 2023

Cambridge, MA — Since 1789, only 27 amendments to the U.S. Constitution have ever been ratified. But in that time, thousands of attempts have been made to update America’s guiding document. These failed amendments reveal a great deal about the historical periods in which they were proposed and force us to consider how different (or similar) the country might look today had they been ratified — these amendments are some of the great what-ifs of American history.

In total, the Amendments Project has compiled over 20,000 proposed amendments, including 11,000 officially introduced in Congress and 9,000 more put forward through petition. Compiling data from congressional records, the Congressional Petitions Database, and online petitions, the fully searchable database is the most comprehensive archive of attempted constitutional amendments to date. The search feature allows anyone to sort amendments by topic, date, sponsor, party affiliation, and type (e.g., petition, bill, etc.).

The project is led by Jill Lepore, the David Woods Kemper '41 Professor of American History at Harvard University and a staff writer for the New Yorker. Lepore explained the motivation behind the project in an opinion piece in the New York Times:

“No one has ever taken stock of this history of failed amendments, an America that never was but was wanted by some, and sometimes by very many, or even most. Americans won’t be able to agree anytime soon on how to amend the U.S. Constitution and will instead face the ongoing risk of ‘commotions, mobs, bloodshed and Civil War.’ Amending is what makes the Constitution everyone’s.”

In addition to the database, the Amendment Project website also features data stories about important failed amendments on issues ranging from abortion to the national debt to polygamy, written by Lepore and members of the research team. These analyses aim to both shed light on topics that continue to be relevant and model how researchers, teachers, and students might work with the Amendments Project's data.

The project is funded by the National Endowment for the Humanities, the Harvard Data Science Initiative, and Harvard's Inequality in America Initiative, and involves collaborations with the Comparative Constitutions Project and the Congressional Petitions Database.

To learn more about how this new database can be used, be sure to follow the project on Twitter and Instagram. The Twitter will feature an amendment-of-the-day series, highlighting some of the most interesting and surprising proposals from the archive.

Please email info@amendmentsproject.org for any press inquiries or questions.

Conclusion: Legal Historians' Reflections on "Outside In: The Oral History of Guido Calabresi"

This is the conclusion to a series of posts in which legal historians reflected on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber.
 
“Why am I worried today? Blogs.”
 
This quote, from one of Norman Silber’s interviews with Guido Calabresi, was part of a reflection on the role of academics in society. Calabresi was explaining his view that academics should be truth-tellers, “whose job is to look into dark places, to tell us what is going on” (OI, v.1, 350). Blogs, to him, raised concerns about academics’ willingness and freedom to tell the truth, because (if I’m reading him correctly) blogs encourage and enable scholars to weigh in immediately on the controversies of the day and, likewise, to receive real-time feedback on their views.
 
I like to think that this blog raises fewer concerns, and that this series of posts might even strike Calabresi as a worthwhile pursuit of truth. Contributors have admired the wealth of autobiographical and biographical content found in Outside In, and they have paired it with their own scholarly and personal insights in order to enrich readers’ understanding of the past.
 
Here is a compilation of all the posts in this series:

• Alex Zhang (Emory Law), "Between History and Poetry in Judging"
• Karen Tani (University of Pennsylvania), "Guido Calabresi and the Economic Style" (Part 1, Part 2, Part 3, Part 4)
  
• José Argueta Funes (Berkeley Law), "On American Legal Topography"
• Kate Redburn (Columbia Law), "Guido’s Religious Egalitarianism"
• Serena Mayeri (Penn Carey Law), untitled reflections 
  
• Noah Rosenblum (NYU Law), "An Illustrious Immigrant: Guido in Historical Time"
• Alison Gocke (UVA Law), "The Long Law and Economics Movement" 
  

Should Silber or Calabresi wish to reply, we would welcome the exchange. As Calabresi wisely notes in his "Subject's Note" at the beginning of Volume 1, his own remembrances of particular events and actions did not always align with the conclusions that Silber drew from his research—but the two collaborators’ acceptance of multiple viewpoints is part of what made the project “a joy” and the resulting volumes a treasure.
 
-- Karen Tani

ACLU Seeks Historically Trained Civil Rights Litigators

We have word from Ananda Burra, ML Munjal University, that the Capital Punishment Project of the American Civil Liberties Union is seeking “lawyers with a serious history background and a serious litigation background,” who can help the ACLU connect “to historian networks and to assist in civil litigation and expert development.”  It particularly seek someone with “historical knowledge and civil rights sensibilities” to help write a history that relates lynching and segregation to the death penalty.  Because the ACLU rarely advertises positions in its national office, the job is “a fabulous opportunity for folks who have a history background but are also fundamentally litigating lawyers..  The posting is here; the kind of writing it envisages is here.  

Professor Burra tells us that he would be happy to discuss the job with anyone interested: ananda.burra@bmu.edu.in.

Weekend Roundup

• Via Slate: Caitlin B. Tully (Princeton University) on "The Liberal Giant Who Doomed Roe." "The primary intellectual source of Alito’s opinion is not originalism," Tully writes, "but the legal scholar John Hart Ely, a self-professed liberal who taught at Yale, Stanford, and Miami, and who was one of the most cited constitutional law professors of the 20^th century." 
  

• John Fabian Witt (Yale Law School) reviews Laura Kalman's FDR's Gambit (The Nation).
  

• Mary S. Bilder, Boston College Law, will discuss her book Female Genius at the Ford Evening Book Talk at the George Washington's Mount Vernon on August 24. 
  

• The CFP for the Seventeenth International Congress of Medieval Canon Law, to be held July 7-13, 2024 in Canterbury, UK, has been issued.  The deadline for submission is December 15, 2023 (ESCLH).
  

• Rachel Shelden, Penn State University, has won the Hughes-Gossett Award of the Supreme Court Historical Society for the best article published in the Journal of Supreme Court History, “Anatomy of a Presidential Campaign from the Supreme Court Bench: John McLean, Levi Woodbury, and the Election of 1848” (Penn State).
  

• 
  At 1 PM on July 17, the Supreme Court Historical Society will host a virtual conversation between Helen Knowles-Gardner and Dennis J. Hutchinson about Professor Knowles-Gardner's recent Journal of Supreme Court History essay on Professor Hutchinson's biography of Justice Byron White, The Man Who Once Was Whizzer White.  They will also discuss Justice White and "the importance of inspiration in the field of legal history."
  

• "Notre Dame Law School grants tenure to four professors," including the legal historian Christian Burset and the administrative law scholar Emily Bremer, who contributes to the history of that field (Notre Dame Law).

• Over at Balkinization, an interesting conversation is unfolding on the uses of history in Supreme Court decisionmaking, especially as pertains to the recent Haaland v. Brackeen case. W. Tanner Allread (Stanford University) writes about "Brackeen and the Value of Careful History." His post responds to an earlier post by Lorianne Updike Toler (Northern Illinois University College of Law) on "Brackeen’s Missteps & The Need for Neutral History."

• From the Washington Post's "Made by History" section: Chloe Thurston (Northwestern University) and Emily Zackin (Johns Hopkins University), "History says student loan debt relief isn’t un-American"; Noah Shusterman (the Chinese University of Hong Kong), "Prigozhin’s private army reminds us why we have the Second Amendment"; Luis A. Romero (Texas Christian University), "When pro-immigrant policies actually aren’t"; and more.
  

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