Max Planck Summer Academy for Legal History

[We have the following announcement.  H/t: KIS.  DRE]

Max Planck Summer Academy for Legal History 2024, 1 July – 12 July 2024

The Max Planck Summer Academy for Legal History provides a selected group of highly motivated early-stage research students, usually PhD candidates, with an in-depth introduction to traditional and contemporary approaches and methods in legal history.

The Summer Academy consists of three parts. The first part introduces the international group of PhD students to sources, methodological approaches and theoretical models as well as to controversial research debates on fundamental issues of legal history. The introductory courses are led by members of the Institute and external guest speakers. In the second part, the invited participants present their own projects within the context of the respective year’s special topic. The third part of the Academy offers the opportunity to all participants to further develop their own research by making use of the library and by discussing their projects with the Institute’s experts in the different fields of legal history.

The course will take place at the Max Planck Institute for Legal History and Legal Theory in Frankfurt am Main, Germany (mpilhlt).

This year’s theme: The mediality and materiality of law.  ‘Mediality’ and ‘materiality’ are important keywords in historical and cultural studies debates. Legal scholarship has also been devoting a great deal of thought to the material and medial conditions of the production and enforcement of law. Legal history has been pursuing this avenue of research for quite some time, noteworthy examples of which include legal archaeology and the long-standing discussions on orality and writing, for example, in medieval legal history.

As of late, more theoretically grounded considerations have entered this discussion, which ask, for instance, about the interplay between the form and content of legal texts through the advent of new technologies such as printing or digitisation. There is a fair amount of interest in the legal significance of of rituals and how they are performed, the connections between architecture, furnishings, and attire as well as the normative power of images. Some even question whether the history of law would look very different if it had not been written solely based on written sources but, for example, on images and artefacts. The question of the ‘mediality’ and the ‘materiality’ of law thus also touches on fundamental aspects of legalhistorical research such as the concepts of the ‘source’, the ‘archive’ and ultimately even that of law.

Such issues will be the focus of the 2024 Summer Academy.

Eligibility Requirements.  Early-stage research students, usually PhD candidates. Working knowledge of English is required, German is not a prerequisite.

Application.  All applications must be supported by a CV, a project summary (approx. 10 pages) and a letter of motivation. Please send your applications via e-mail to: summeracademy@lhlt.mpg.de.  Submission deadline for applications is 31 January 2024.

Fees.  The Academy is generously funded by mpilhlt. There is no participation fee. Accommodation will be provided by the organisers for free. Participants, however, will be responsible for covering their travel expenses (in cases of hardship these can be covered by a limited number of scholarships).

Kontakt.  Stefanie Rüther, Forschungskoordinatorin +49 (69) 789 78 - 190 ruether@...
summeracademy@lhlt.mpg.de

Parker's "Turn to Process"

Kunal M. Parker, University of Miami School of Law, has published The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970, in the series Cambridge Historical Studies in American Law and Society, edited by Christopher L. Tomlins.

In The Turn to Process, Kunal M. Parker explores the massive reorientation of American legal, political, and economic thinking between 1870 and 1970. Over this period, American conceptions of law, democracy, and markets went from being oriented around truths, ends, and foundations to being oriented around methods, processes, and techniques. No longer viewed as founded in justice and morality, law became a way of doing things centered around legal procedure. Shedding its foundations in the 'people, ' democracy became a technique of governance consisting of an endless process of interacting groups. Liberating themselves from the truths of labor, markets and market actors became intellectual and political techniques without necessary grounding in the reality of human behavior. Contrasting nineteenth and twentieth century legal, political, and economic thought, this book situates this transformation in the philosophical crisis of modernism and the rise of the administrative state.

Here are some endorsements:

‘Ranging widely across disciplines, crossing political boundaries, and unsettling conventional wisdom at every turn, The Turn to Process provides a brilliant new synthesis of a transformative period in American intellectual life.’

Angus Burgin - Johns Hopkins University

‘This book is a real tour de force, a return to intellectual history in the grand manner. In Kunal Parker’s synthesis, the leading theorists of law, political science, and economics in the twentieth century all contributed to, and followed, a shift away from theorizing their sciences as means to substantive ends such as justice or morality, to thinking about them only as methods or procedures. The book is marked by deep learning in the sources of all three fields and an uncommon lucidity in exposition.’

Robert W. Gordon - author of Taming the Past: Essays on Law in History and History in Law

‘In this revelatory account of ‘a world rendered process’, Kunal Parker brilliantly reframes the history of modern American knowledge-making. As foundational certainties faltered in the late nineteenth century, he contends, the language of tools, methods, and techniques remade entire disciplines and professions - with enduring consequences for how we understand law, democracy, and markets.’

Sarah Igo - author of The Known Citizen: A History of Privacy in Modern America

Professor Parker discusses the book here.

--Dan Ernst

Blackhawk, "The Constitution of American Colonialism"

The Harvard Law Review has published "The Constitution of American Colonialism," by Maggie Blackhawk (New York University). The article appears as the Foreword to the law review's annual Supreme Court Issue. Here is an excerpt from the introduction to the piece:

The United States holds hundreds of governments in subordination. Not historically. Today. It dominates these governments and their peoples, exploits their resources, prohibits political independence, withholds representation, and imposes its own laws, values, and norms upon these governments without consent. Mere decades ago, the United States forcefully sterilized citizens of these nations3 and removed a quarter or more of Native children from their families.4 At the same time, the Supreme Court stripped these governments of the ability to police crimes in their own communities,5 unleashing widespread sexual violence and leaving more than one in three Native women vulnerable to rape.6 Just over a hundred years ago, the United States invaded these nations and held them under decades of martial law before unilaterally appointing civil governments.7 It ran detention camps on the lands of these governments8 and forced their children into boarding schools that promised to “[k]ill the Indian in [them], and save the man.”9 Federal agents beat Native children in such schools for speaking Native languages,10 held them in unsanitary conditions,11 and forced them into manual and dangerous forms of labor.12 Thousands died.13 Federal law also criminalized political and spiritual practices14 and outlawed traditional marriage and family structures.15 In the last two hundred years, the United States has engaged in campaigns of mass execution16 and slaughter against citizens of these governments to a level that many have called genocide.17

But we do not consider these problems to be problems of constitutionalism. We do not invoke this history when considering questions of good governance, citizenship, representation, the ideal design of our governing institutions, or the best distribution of power across the national government and within “our federalism.” Constitutional scholars rarely discuss the problem of American colonialism at all. We lack the very language to confront these problems in a constitutional register. Our common parlance of rights, equality, and integration fails us. Our antisubordination discourse runs out. The limits of our constitutional language are seemingly the limits of our world.18

Instead, we call the component parts of American colonialism sui generis.19 We banish each to its silo. The United States did not engage in a structured and mass campaign to remove, detain, assimilate, and destroy these governments and their peoples in the name of “civilization.” Rather, we have federal Indian law;20 the law of the territories;21 foreign relations law;22 treaty law;23 the war powers;24 and the laws of naturalization, immigration, and citizenship.25 We have the puzzle of Puerto Rico,26 the fascinating but marginalized question of Native nations,27 and the forgotten history and ongoing struggles of the state of Hawai‘i.28 All of these puzzles are seen as so illogical and alien as to withstand theorization, defy understanding, and refuse any common logic. Rather than engage with questions born of American colonialism, we have instead declared these puzzles as beyond our constitutional theory and left them to the “plenary power” of the political branches to solve.29

Yet, these colonized nations and peoples have lived on and continue to shape the government, the Constitution, and the empire we live with today.

Read on here. The journal has also published a response by Jennifer M. Chacón (Stanford Law School).

-- Karen Tani

MPI-TAU Transnational Legal History Workshop

[We have the schedule for the Transnational Legal History Workshop, sponsored by the Max Planck Institute and Tel Aviv University.  DRE]

The Berg Foundation Institute for Law and History at The Buchmann Faculty of Law, Tel Aviv University, and the Max-Planck-Institute for Legal History and Legal Theory will continue the joint MPI-TAU Transnational Legal History Workshop in the Fall Semester 2023/2024.

The workshop will meet from 19:00-20:30 (Frankfurt time) and 20:00-21:30 (Tel Aviv time). This year's organizers and moderators are Leora Bilsky (TAU), Thomas Duve (MPI), Rachel Friedman (TAU), David Schorr (TAU), and Stefan Vogenauer (MPI).

Sessions will be conducted on Zoom and will be based on pre-circulated papers. The papers will be sent to each participant one week in advance.

Registration for participation is required: mpitauwkshp@gmail.com

6 December                Assaf Likhovski (TAU)

Studying Ancient Constitutional Law in Colonial India and Mandatory Palestine

13 December              Jan-Henrik Meyer (MPILHLT)

European Community Environmental Law in the 1970s: Combatting Water Pollution

20 December              Noga Morag-Levine (Michigan State University)

England’s Missing Boards of Health: The Medieval Beginnings of an Anglo-Continental Divergence

10 January                  Alon Jasper (TAU)

Transforming a Polity into an Economy: The Five Nations and the Railroads, 1855-1894

17 January                  Raquel Sirotti (MPILHLT)

State-like powers? Charter Companies and the production of knowledge of normativity in Mozambique (1891-1942)

24 January                  Egas Moniz Bandeira (FAU)

Changing Legal Professions in China, Japan, and the Ottoman Empire in the long 19th century: Towards a Historical Comparison

31 January                  Aparna Balachandran (Delhi University)

Religion, Law and Urban Governance: Subaltern Christians as Legal Subjects in Early Colonial South India

7 February                  Cristiano Paixão (University of Brasília)

Transnational legal mobilization: repressive structures and networks of resistance in S. American dictatorships (1964-1988)

14 February                Julia Moses (University of Sheffield)

Harmonizing the Family? International Law, Cultural Norms and Marriage at the Turn of the Twentieth Century

21 February                Sarina Kuersteiner (Union College)

Whatever God Gives: Arabic and Judaeo-Arabic Rizq and Latin Resicum in Commercial Vocabulary, 1154-1164 CE

Willrich's "American Anarchy"

Michael Willrich, Brandeis University, the immediate past president of the American Society for Legal History, has published American Anarchy: The Epic Struggle between Immigrant Radicals and the US Government at the Dawn of the Twentieth Century (Basic Books):

In the early twentieth century, anarchists like Emma Goldman and Alexander Berkman championed a radical vision of a world without states, laws, or private property. Militant and sometimes violent, anarchists were heroes to many working-class immigrants. But to many others, anarchism was a terrifyingly foreign ideology. Determined to crush it, government officials launched a decades-long “war on anarchy,” a brutal program of spying, censorship, and deportation that set the foundations of the modern surveillance state. The lawyers who came to the anarchists’ defense advanced groundbreaking arguments for free speech and due process, inspiring the emergence of the civil liberties movement.

American Anarchy tells the gripping tale of the anarchists, their allies, and their enemies, showing how their battles over freedom and power still shape our public life. 

Some endorsements:

"Michael Willrich's genius is to bring to life vitally important but little-known struggles in U.S. history. In American Anarchy, he explains why some late nineteenth-century Americans rejected a rule of law they believed privileged the wealthy, and shows how the government's attempt to silence them gave rise to the protections of civil liberties. Brilliantly written and deeply engaging; every page illuminates today's America."
 
Heather Cox Richardson, author of How the South Won the Civil War

"In American Anarchy, Michael Willrich recaptures the high drama and ultimate tragedy of the anarchist movement in the United States. A century ago, Emma Goldman and her comrades were household names, inspirations for both liberatory promise and deep, abiding fear. With their challenges to the social order—sometimes through spectacular violence and terrorism—they upended assumptions about safety, liberty, and capitalism itself. In the process, they remade American law, for both better and worse. Willrich's book provides a compelling account of the cases and conflicts that once preoccupied the nation."
 

Beverly Gage, Pulitzer Prize–winning author of G-Man

--Dan Ernst

English Law, the Legal Profession, and Colonialism

English Law, the Legal Profession, and Colonialism: Histories, Parallels, and Influences, edited by Cerian Griffiths, Northumbria University, and Lukasz Jan Korporowicz, University of Lodz (Routledge, 2024):

Modern legal history is increasingly interested in exploring the development of legal systems from novel and nuanced approaches. This edited collection harnesses the lesser-researched perspectives of the impact of global and imperial factors on the development of law. It is argued that to better understand these timely discussions, we must understand the process and significance of colonisation itself. The volume brings together experts in the field of law and history to explore the ways in which law and lawyers contributed to the expansion of the British Empire, and the ways in which the Empire influenced the Metropole. The book sheds new light on the role of the law and legal actors during the pivotal centuries that saw the establishment of the Empire. Exploring such topics as Atlantic relations, the impact of British jurists upon Indian law, and the development of the law settler colonies, this collection reveals some of the lesser-known intersections between law, history, and empire. The book will be of interest to students and researchers in legal history, comparative history, equity and trusts, contract law, the legal profession, slavery, and the British Empire.

TOC after the jump.

--Dan Ernst

Keay, Inwood, & Long on Criminal Sentencing in BC, 1864-1913

Ian Keay, Queen's University, Kris Inwood, University of Guelph, and Blair Long, Cape Breton University, have posted Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913:

BC Penitentiary 1877 (wiki)

In this paper we document the effect of transformative institutional change on criminal sentencing in a frontier environment. New historical evidence digitized from British Columbia’s (BC) prison admission ledgers allows us to track changes in sentencing distributions from 1864 to 1913. We find that as BC's criminal justice system moved from informal and locally independent colonial institutions, toward a set of institutions that closely resemble the system in place today, average sentences got longer and sentence dispersion fell. We isolate the increase in sentence length and decrease in sentence dispersion that can be attributed to changes in judicial decision-making by controlling for changes in the observable characteristics of the province's prison population. We also show that changes in the sentencing distribution were coincident with a reduction in judicial discretion, an increase in sentence predictability, and an expansion in the criminal justice system along the extensive margin. 

--Dan Ernst

Wang's "Making of Felony Procedure in Middle English Literature"

Elise Wang, California State University, Fullerton, has published The Making of Felony Procedure in Middle English Literature in the Law and literature series at Oxford University Press:

The Making of Felony Procedure in Middle English Literature explores the literary inheritance of criminal procedure in thirteenth to fifteenth century English law, focusing on felony, the gravest common law offense. Most scholarship in medieval law and literature has focused on statute and theory, drawing from the instantiating texts of English law: acts of Parliament, judicial treatises, the Magna Carta. But those whose job it was to write about the law rarely wrote about felony. Its definition was left to its practice--from investigation to conviction--and that procedure fell to local communities who were generally untrained in the law. Left with many practical and ethical questions and few legal answers, they turned to cultural ones, archived in sermons they had heard, plays they had seen, and poetry they knew. This book reads the documents of criminal procedure--coroners' reports, plea rolls, and gaol delivery records--alongside literary scenes of investigation, interrogation, and witnessing to tell a new intellectual history of criminal procedure's beginnings.

The chapters of The Making of Felony Procedure guide the reader through the steps of a felony prosecution, from act to conviction, examining the questions local communities faced at each step. What evidence should be prioritized in a death investigation? Should the accused consider narrative satisfaction when building his plea? What are the dangers of a witnessing system that depends so heavily on a few "oathworthy" men? What can a jury do if the accused's guilt seems partial or complex? And what if the defendant-for whatever reason--refuses to participate in this new, still--delicate system of justice? The book argues that answers they found, and the sources that informed them, created the system that became modern criminal procedure. The epilogue offers some thoughts about the resilience and incoherence of the concept of felony, from the start of the jury trial to the present day.

The TOC is here.

--Dan Ernst

Weekend Roundup

• The Birnbaum Women's Leadership Center at New York University invites applications for Visiting Fellows-in-Residence for the 2024-25 academic year. "Ideal candidates are legal scholars with sabbatical funding who seek to undertake research and writing, organize events, and otherwise collaborate on projects focused on women’s rights and gender equity and justice."
  
  
• Judge Ryan Nelson of the U.S. Court of Appeals for the Ninth Circuit, will be teaching Constitution in the Early Republic next semester at Berkeley Law.  H/t: Orin Kerr.
  

• The latest episode in the Stanford Legal podcast series is From Sumptuary Laws to Senate Suits: Dress Codes in History and Today.
  

• The Oral History Center at the University of California, Berkeley, has announced "the launch of the Japanese American Intergenerational Narratives Project, featuring 100 hours of oral history interviews with 23 Japanese American narrators who are survivors and descendants of two World War II-era sites of incarceration." 
  

• More on “Legacies of 1619: Law and Race at Jamestown,” a public education project, in which the Jamestown Rediscovery Foundation has partnered with the William & Mary Law School’s Legal History Society, a student organization advised by Thomas McSweeney.  The public historian Mark Summers explains that the project will “connect programs looking at the early days of race-based slavery in Virginia and the First Assembly, the first representative governing body to meet in the Americas” (Virginia Gazette).
  

• “Himanshu Agarwal, an associate professor at Jindal Global Law School; Sebastian Spitz, a doctoral student in Sociology at Harvard; and Rohit Sharma, a researcher at the Mittal Institute”  “presented archival research on the history of punishment in India during a webinar panel Monday morning hosted by Harvard’s South Asia Institute. ... The event was moderated by Adaner Usmani, an assistant professor of Sociology and Social Studies at Harvard (Harvard Crimson).
  

• The Law Society of Ireland’s Barry Whelan will speak about the life of Michael Noyk, “legal advisor to Michael Collins during the War of Independence” and “one of the principal solicitors acting on behalf of arrested Republican figures,” on Wednesday, January 24 (6pm to 8pm) at the Moya Quinlan Lecture Theatre, Education Centre, Law Society of Ireland, Blackhall Place, Dublin 7 (Law Society Gazette).
  

• ICYMI: Prosecuting a Wobbly in Iowa in the 1920s (Cedar Rapids Gazette). Amanda Levendowski on Barbara Ringer, from 2014, but on the 50th anniversary of Ringer's appointment as the first female Register of Copyrights (The Atlantic, via Internet Archive).  Joshua Getzler joins Cornerstone Barristers as an associate member (Local Government Lawyer).

• Update: Malta's Notarial Registers Archive has been inaugurated (Malta Business Weekly).
  

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

Avi-Yonah on the First US Tax Treaty

Reuven S. Avi-Yonah, University of Michigan Law School, on the The First US Tax Treaty and Its Influence:

This paper discusses the first US tax treaty concluded with France in 1932 and ratified in 1935. This treaty is interesting because it follows the League of Nations model of 1928 but with significant differences. It is also a treaty between a global jurisdiction and (at the time) a purely territorial one. This meant that while reductions in French taxes benefited the US fisc because they resulted in lower foreign tax credits (but the overall tax level was the same), French investors into the US could derive some types of income (e.g., royalties) without any tax being imposed by either country. This may also explain why the treaty was more limited in scope than the League of Nations model. But the main importance of the treaty is because it is the first ever appearance of the Arms Length Principle in international tax, which had a profound influence.

--Dan Ernst

Sood and Ehrman-Solberg on the Effects of Racial Restrictive Covenants

Aradhya Sood, University of Toronto, and the late Kevin Ehrman-Solberg, have posted Mapping Prejudice:

Racial covenants, which were used throughout the U.S. during the first half of the 20th century, were clauses in property deeds that prohibited the sale or rental of property to racial and ethnic minorities. This paper studies the long-run causal and persistent effects of racially restrictive covenants on racial sorting, racial homeownership differentials, and house prices. Using novel data on racial covenants and a quasi-experimental design that exploits time to build delays in housing and the 1948 U.S. Supreme Court ruling that made racial covenants unenforceable, we compare newly built, covenanted (and hence all-white) neighborhoods built before 1948 with covenanted neighborhoods constructed after the verdict, as the post-1948 neighborhoods lost a primary legal way to coordinate segregation. We find that about 5-17% of the observed neighborhood racial residential sorting and 6-17% of racial homeownership sorting, measured from 1980 to 2020, can be causally linked to racial covenants of the past. In addition, while the treated and control neighborhoods exhibit some differences in public amenities, particularly in the distance to highways and the restrictiveness of zoning regulations, these differences do not drive the observed persistent effects. Instead, homophily bias or unobserved housing quality are the likely drivers behind the persistent effects.

--Dan Ernst

Journal of the Texas Supreme Court Historical Society 13:1

The Texas Supreme Court Historical Society has published the Fall 2023 issue (13:1) of its Journal.  Sports is the major theme of the issue, although a few other subjects sneak in, including my profile of Marguerite Rawalt.  I’m grateful to the editor for soliciting it.  Here are the principal articles:

Baseball, Kenesaw Mountain Landis, and the Judicial Strike Zone —Home Run or Foul on the Play?
Jan L. Jacobowitz

Float Like a Butterfly, and Sting Like a Supreme Court Opinion: Muhammad Ali’s Draft Evasion Trial
Hon. John G. Browning

Trouble and Justice: How Trouble in Texas Led to the Court Martial Trial of America’s Beloved Jackie Robinson.
Alia L. Adkins-Derrick

Punching Above His Weight: “Sporty” Harvey and the Fight to Integrate Boxing in Texas
Hon. John G. Browning

Undistinguished Distinction: Texas’s (Scant) History of Removal Impeachment
Bruce Tomaso

Jack Johnson and the Mann Act
Hon. John G. Browning

A Profile of Marguerite Rawalt
Daniel R. Ernst

--Dan Ernst

Allread on State Supremacy and Indian Removal

W. Tanner Allread, Stanford University, has posted The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law, which appears in the Columbia Law Review:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism argument.

--Dan Ernst

The Saint Petersburg School of International Law

New from Talbot Publishing: The Saint Petersburg School of International Law: A Bio-Bibliographical Study (Petrine Russia to the 1920s), by W. E. Butler and V. S. Ivanenko.

Based on unprecedented use of archival sources in St. Petersburg and the United States, this encyclopedic treatise is dedicated to the individuals associated with the development of international legal doctrine and state practice for two centuries in the capital of the Russian Empire. Well over four hundred are identified and the contributions of principal figures are summarized or critiqued. St. Petersburg University, which celebrated its 300th anniversary in 2024, is the key institution, but others played a role. The contributions of each are examined.

The "St. Petersburg School" is broadly construed to encompass jurists and international legal practitioners whose contact with the capital was brief, but nonetheless documented. The ethnic origins of the St. Petersburg international legal community are impressive in their diversity: Russians, Ukrainians, Belorussians, Georgians, Moldovans, Poles, Estonians, Latvians, Lithuanians, Baltic Germans, Jews, and Hungarians, augmented by individuals from Scandinavian and Western European countries. Extensive bibliographical references, as well as photographs of 60 of the lawyers, enrich the existing corpus of contributions by St. Petersburg to international legal doctrine.

Table of Contents here.

Dan Ernst

Shelden on Lincoln, Dred Scott, Politics and the Judiciary

Rachel A. Shelden, Penn State, has published “I Shall Not Forget or Entirely Forsake Politics on the Bench”: Abraham Lincoln, Dred Scott, and the Political Culture of the Judiciary in the 1850s in the Maryland Law Review.  From the introduction:

Raymond Massie in "Lincoln in Illinois" (NYPL)

In his first debate with Stephen Douglas at Ottawa on August 21, 1858, Abraham Lincoln repeated a theory that he had been touting for nearly two months, since his famed “House Divided” speech in June. According to the Illinois Republican, there had been a conspiracy among four “workmen” of the Democratic Party to nationalize slavery in the United States, which had culminated in Dred Scott v. Sanford. First in the conspiracy was Senator Douglas, whose Kansas-Nebraska Act in 1854 upended a thirty-year ban on slavery in the U.S. territories above the 36º 30’ latitude in favor of “popular sovereignty”—letting the people of a territory decide. Next came former-president Franklin Pierce, who encouraged acceptance of the Kansas-Nebraska legislation and any potential consequences, including the violence that exploded in Kansas between pro- and anti-slavery settlers. Third in the plot: newly-elected President James Buchanan, who pressed his inaugural audience in March 1857 to accept any decision on slavery in the territories that the Supreme Court might make. And finally, with all of these pieces set in place, Chief Justice Taney delivered his opinion in Dred Scott just two days after Buchanan’s inaugural address, declaring that Congress had no power to legislate on slavery in the territories. Clearly, Lincoln argued, all these men knew in advance what the result would be in Dred Scott; after all, when asked by a Senate colleague if it was constitutional for the people of a territory to ban slavery from their borders, Douglas answered that “it was a judicial question.” Thus, Lincoln concluded, “we find it impossible to not believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first lick was struck.”

Read in a modern context, Lincoln’s charge appears quite serious—at least as it relates to the Chief Justice. . . . .  Accusations that a Justice discussed a pending case make front page news today. Proof of such conduct would likely be a full-blown scandal. Yet there was little public reaction in 1858 to Lincoln’s charge of a conspiracy among all three branches of government. Illinois papers printed the “House Divided” speech, but without much commentary, and over the course of the remaining debates, the two Senate candidates referred to it infrequently. . . .

Buried in the broader story of Lincoln’s political rise, this little episode reveals a great deal about the relationship between judges and politics in the mid-nineteenth century. The sheer ordinariness of Lincoln’s accusation—and the lack of public outrage in response—illustrates how boundaries of judicial conduct were understood differently at the time. Rather than relegated to their own separate judicial sphere, judges were key players in nineteenth-century politics; they served as partisan presidential electors, advised political candidates (or were candidates themselves), and collaborated on legislation. Judges’ courtrooms also served as key political spaces: During judicial terms, grand juries pressed political leaders for their views on important issues, lawyers with business before the courts delivered campaign speeches, and partisans protested opponents at the courthouse. This integrated relationship between courts and politics meant that Americans typically measured judges’ conduct against the broader political culture—the unspoken and underlying (though evolving) beliefs, attitudes, norms, and available mechanisms that guided politics in that era.

--Dan Ernst

CFP: 4th Asian Legal History Conference

[We have the following CFP.  DRE]

Call for Papers – The 4th Asian Legal History Conference

The University of Law – Hue University, with the support of the Transnational Legal History Group of the CUHK LAW’s Centre for Comparative and Transnational Law and the University of Oxford Programme in Asian Laws, will be organizing the Fourth Asian Legal History Conference on 25-26 July 2024. The conference is supported by the Asian Legal History Association. Previous Asian Legal History Conferences have been hosted, organized and supported by the University of Law at Hue University, the Faculty of Law at Thammasat University, the Centre for Asian Legal Studies at the National University of Singapore and the Faculty of Law at the Chinese University of Hong Kong.

The conference aims to bring together a diverse, interdisciplinary group of scholars, researchers and graduate students to share their research findings on topics relating to legal history in Asia. The conference is open to both scholars anywhere in the world working on Asian legal history, broadly understood, and scholars based in Asia working on any legal history-related subjects.

The conference will be held entirely in person. Participants will be responsible for the costs of travel and accommodation. The organizers will circulate a list of suggested hotels to selected presenters. The organizers will also provide two lunches, one dinner, and tea breaks.

Click here for the call for papers. The deadline for paper and panel proposals is 15 March 2024.

JSCH 48:3

Journal of Supreme Court History 48.3 has been published.  Here is the TOC:

Introduction
Timothy S. Huebner

Livingston v. Jefferson and Jefferson v. Marshall – Defending an Ex-President
Jack McKay

Samuel Nelson and Judicial Reputation
William B. Meyer

William Howard Taft as Solicitor General
Walter Stahr

The Bronze Doors, or A Tribute to the Legitimacy and Endurance of the Written Rule of Law
Charles Eskridge and Jack DiSorbo

The Judicial Bookshelf
D. Grier Stephenson

Contributors

Illustrations 

--Dan Ernst

Lebovic's "State of Silence"

Sam Lebovic, George Mason University, has published State of Silence: The Espionage Act and the Rise of America's Secrecy Regime (Basic Books):

In State of Silence, political historian Sam Lebovic uncovers the troubling history of the Espionage Act. First passed in 1917, it was initially used to punish critics of World War I. Yet as Americans began to balk at the act’s restrictions on political dissidents and the press, the government turned its focus toward keeping its secrets under wraps. The resulting system for classifying information is absurdly cautious, staggeringly costly, and shrouded in secrecy, preventing ordinary Americans from learning what their country is doing in their name, both at home and abroad.  

Shedding new light on the bloated governmental security apparatus that’s weighing our democracy down, State of Silence offers the definitive history of America’s turn toward secrecy—and its staggering human costs.  

Here is an endorsement:

“A thoughtful and much-needed study of one of the most controversial laws in United States history. From World War I through the Trump indictments, the Espionage Act has shaped some of our most dramatic political moments. Sam Lebovic’s book is an essential guide to this history of trial and error—and to the law of unintended consequences.”
 
Beverly Gage, Pulitzer Prize–winning author of G-Man

We know of two events for the book: From Spies to Leakers: The History of the Espionage Act, an online event at the National Constitution Center on December 4, and a State of Silence: The Espionage Act, Politics, and Press Freedom, a panel discussion at the Knight First Amendment Institute at Columbia University, on December 6.

--Dan Ernst

Job Alert: Director, Lemelson Center

[We have the following announcement.  DRE.]

Director, Lemelson Center for the Study of Invention and Innovation.  Public History Division, National Museum of American History, Smithsonian Institution

The Smithsonian’s Lemelson Center for the Study of Invention and Innovation seeks a Director to serve as the champion for the power of invention and innovation and to lead the Center’s pathbreaking educational and engagement efforts. The Director oversees scholarship, exhibitions, and digital and programmatic initiatives, guiding the Center as an authority on the history of invention and innovation and its potential to inspire learning and change. This is an opportunity to lead a motivated staff and fulfill the Center’s strategic mission, drawing on consistent, protected funding from the current Lemelson endowment.

To learn more about the Lemelson Center’s previous events, research, publications, exhibitions, and programming, please visit [here].

Job Requirements/Desired Skills and Experience:

Experience in a museum, cultural or educational institution is required; board, consultation or advisory experience is desirable.

Experience developing and guiding short- and long-term institutional plans that shape a sustained, multifaceted program of educational activities for public audiences.

Experience establishing frameworks for effective collaboration and partnerships across multi- format, cross-disciplinary projects.

We are open to non-traditional candidates from industry, academia, or other fields and institutions. An advanced degree is required.

To Be Considered:

Please submit your résumé and a cover letter that describes how your skill set and background aligns with the requirements and opportunities of the position. We also request a writing sample and a list of three (3) professional references.

Applications must be received by December 4, 2023. For more information and to apply, visit this link:

This is a full-time, Trust (non-Federal) position at IS-15, Step 1. The starting salary is $155,700 with an excellent benefits package. The job is based in Washington, DC, USA.

If you have further questions, please send your inquiries to: NMAHApplications@si.edu.

Clemons on Coercive Ideology

Tyler Rose Clemons, Acting Assistant Professor of Lawyering, N.Y.U. School of Law (and a former student of mine) has posted Coercive Ideology, which is forthcoming in the Maryland Law Review:

Confederate Statue, Pontotoc, MS (LC)

Current equal protection jurisprudence does not permit challenges to discriminatory government expression, no matter how blatant or extreme. This doctrine, which I label the discriminatory treatment requirement, is a manifestation of anticlassification, the prevailing equal protection framework since the mid-1970s. According to anticlassification, only suspect government classifications implicate the Equal Protection Clause. In this article, I contend that discriminatory government expression violates the Clause because it contributes integrally to racial subordination. Through a process I call coercive ideology, discriminatory government expression serves as a veiled threat that manipulates individuals into performing public compliance with the dominant ideology. Like the script of a stage play, the aggregate of individual decisions to comply with its instructions translates the dominant ideology into a social reality. Coercive ideology reveals how both Lost Cause Confederate monuments and Jim Crow segregation signage contributed to racial subordination as discriminatory government expression in the New South. Because anticlassification fails to account both for the subordinating effects of discriminatory government expression and for the expressive effects of government classification, coercive ideology ultimately raises doubts about its continuing validity as the dominant approach to equal protection jurisprudence.

--Dan Ernst

Foster on Enforcing Crown Forfeitures in Equity

David Foster, University College London Faculty of Laws, has posted Fraud, Trusts and Trusting: Enforcing Crown Forfeitures in Equity, c.1570–1620, which is forthcoming in the Journal of Legal History:

Sir Edward Coke (NYPL)

Conveyances with informal agreements to hold for the benefit of the transferor initially proved efficacious in avoiding statutory forfeiture provisions. In the late sixteenth century, the equity side of the Exchequer developed a capacious doctrine of revenue fraud designed to capture such informal arrangements and to subject the transferor to liability for crown forfeitures. Initially drawing inspiration from the ‘badges of fraud’ in the Statute of Fraudulent Conveyances 1571, the Exchequer quickly lowered the evidentiary threshold required to prove a conveyance fraudulent. A key badge of fraud was an ‘entrusting’ of the transferee by the transferor. The presence of a conveyance ‘in trust’ eventually became the sole evidence required to hold certain conveyances fraudulent under the statute. In the longer term, these cases became the precedential basis for holding the beneficiary’s right under a trust liable to forfeiture as a matter of doctrine.

--Dan Ernst

Weekend Roundup

• The Richmond Free Press has reported the discovery of “144 moldy boxes filled with the decaying legal papers of one of Richmond’s legal giants, Roland J. 'Duke' Ealey,” a 1939 graduate of the Howard Law School.  Topics include “Poll tax litigations and campaign information; Richmond Crusade For Voters literature and training materials; Prince Hall Fraternal Order of Black Freemasonry documents; Massive Resistance and the Byrd Machine; Interstate Highway System family displacement records; [and] Brown v. Board of Education paperwork. 
  

• The Annual General Meeting of the Irish Legal History Society on Friday, December 1, 2023, includes, at 6.45 GMT, the Winter Discourse, “The Trials of Bad Bridge,” by Elaine Farrell and Leanne McCormick.  It is open to non-members who register for the event.

• From In Custodia Legis: the legal history of the New York City rat.
  

• Richard W. Ireland, on delight in legal history, especially as engendered by "Characters, Not Caricatures: Sketches taken from life principally in Court on the Western Circuit" (Legal History Miscellany).
  

• From the American Historical Review, an interesting Call for Proposals: AHR Special Issue: “The Mistakes I Have Made." 
  

• 
  If you had read Joanne Freeman's Field of Blood: Violence in Congress and the Road to Civil War, you couldn't help thinking of it upon encountering the reports of bad behavior in Congress this week.  Professor Freeman answers the call here and here.
  

• Over at the blog of the Supreme Court Historical Society, Todd C. Peppers and Tim Flanigan have posted Efficient and Humane: Chief Justice Warren Burger Reconsiders the Bar Admission and Reading Opinions from the Bench.
  

• Speaking of the Supreme Court Historical Society, the discussion it hosted on Cliff Sloan’s The Court at War: FDR, His Justices, and the World They Made is now on YouTube.
  

• Asheesh Kapur Siddique has published The Ideological Origins of “Written” Constitutionalism in Early American Studies: An Interdisciplinary Journal. "Building on recent scholarship on the coproduction of writing practices and state formation, it argues that the mode of constitution-making inaugurated in the aftermath of the American Revolution represented less a moment of origin than an ideological project of revising the relationship between document and statecraft characteristic of the early modern British Empire."
  

• Over at Credit Slips, my Georgetown Law colleague Adam Levitin is part of a discussion, arising from the briefing in the Purdue Pharma bankruptcy case before the Supreme Court, about the constitutional significance of unpublished English opinions.  See here and here.  DRE
  

• Brad Snyder discusses his book, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, with Jeffrey Rosen at the New-York Historical Society on Tuesday, December 12, 6:30 – 7:30 pm ET.  The charge for livestream access for nonmembers is $30.
  

• Over at the Law & Political Economy Blog: Karl Klare (Northeastern University School of Law) on the history of "non-reformist reforms" (in dialogue with Amna Akbar's recent article on this topic).
  

• ICYMI: “American LGBTQ+ Museum’s first traveling exhibition celebrates Lambda Legal’s history" (gay city news). "More Than 100 Years Later, Army Overturns Convictions of 110 Black Soldiers After 1917 Houston Riots" (Military.com).

• Update:  "Leviathan Production has entered development on a feature adaptation of Henry Ford’s War on Jews and the Legal Battles Against Hate Speech, a historical work penned by Victoria Saker Woeste" (Deadline).
  

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

Immigration Act of 1924 at 100

The Immigration History Research Center and the Immigration and Ethnic History Society announce the webinar, The Immigration Act of 1924: Rethinking its Origins and Impact 100 Years Later, to be held February 20, 2024. 3:30 pm - 5:00 pm Central Time.  Register here.

100 years ago, the U.S. Congress passed the Emergency Quota Act of 1921, and then, three years later, the 1924 Immigration Act. Together, these laws inaugurated an unprecedented era of immigration restriction, further legitimized discrimination based on race and national origin in immigration law, and established the national origins quota system which remained in place for over forty years. This webinar will explore how the immigration system created by the 1924 Immigration Act reshaped American society and affected migration flows around the world.

--Dan Ernst

Frankfurter and the Idea of Judicial Self-Restraint

Felix Frankfurter (LC)

[We have the following announcement from the Historical Society of the New York Courts.  DRE]

Justice Felix Frankfurter and the Idea of Judicial Self-Restraint: Then and Now in Federal and State Courts

December 11 @ 6:30 pm - 8:30 pm EST.  A Hybrid Event [In-person at and livestreamed from the] New York City Bar Association, 42 West 44th Street, NYC.  Presented by the Historical Society of the New York Courts; co-Sponsored by the New York State Writers Institute at SUNY Albany.  NY CLE Credits Currently Pending by the Judicial Institute.  Available only to current members of the Historical Society of the New York Courts, the New York State Writers Institute at SUNY Albany and the New York City Bar Association.

This program will delve into the judicial philosophy and legacy of U.S. Supreme Court Justice Felix Frankfurter, starting with his New York beginnings, with Frankfurter’s biographer. This will be followed by an engaging discussion with a distinguished panel about Frankfurter’s interpretation of judicial restraint and how it is relevant in the decision-making process of today’s federal and state judiciaries, with a focus on the U.S. Supreme Court and the New York Court of Appeals.

Welcome
Henry M. Greenberg, Esq.
Shareholder, Greenberg Traurig LLP
Vice Chair, Historical Society of the New York Courts

Introductions
Prof. John Q. Barrett
Benjamin N. Cardozo Professor, St. John’s University School of Law
Trustee Emeritus, Historical Society of the New York Courts

Presentation on the Live of Felix Frankfurter
Prof. Brad Snyder
Professor of Law & Anne Fleming Research Professor, Georgetown University Law Center
Author of Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (W.W. Norton & Co., 2022)

Panel Discussion on Judicial Restraint: Then and Now
Hon. Jonathan Lippman
Former Chief Judge of the State of New York
President, Historical Society of the New York Courts

Hon. Barbara D. Underwood
Solicitor General of the State of New York
Former Acting Solicitor General of the United States

Dean Troy A. McKenzie
Dean & Cecelia Goetz Professor of Law, New York University School of Law
Trustee, Historical Society of the New York Courts

Prof. Brad Snyder

Prof. John Q. Barrett

Law Books: History and Connoisseurship

[We have the following announcement.  DRE]

Kathryn James and Mike Widener will be co-teaching the Rare Book School course, “Law Books: History and Connoisseurship,” at the Yale Law School next summer, June 9-14. Drawing on the Yale Law Library’s outstanding rare book collection,  the course offers an intensive week-long introduction to the history of law materials in print and manuscript, and to developing and using historical collections for teaching and research. Kathryn James became the Yale Law Library’s rare book librarian in 2021 upon Mike Widener’s retirement. If you’ve waited and wondered about the course, know that this will be the last opportunity to take the class with Mike Widener [emphasis supplied], who will be hanging up his Rare Book School boots on June 15 after fourteen years.

Details on registration are available on the Rare Book School website.

AJLH 63:2

The American Journal of Legal History has published its 63:2 (June 2023) issue.  It is devoted to the symposium "Status in Ancient and Medieval Law."

Status in Ancient and Medieval Law: Introduction
Timothy Lubin

Empire, Status, and the Law
Clifford Ando

Metics and Freedmen: Conflicts of Social and Juridical Status in the Classical and Hellenistic Greek World
Elizabeth A Meyer

Religious Endowments in Ancient India and the Institutionalization of Brahmin Caste Status
Timothy Lubin

Belief as Status: Premodern Islamic Law, Duties, and the Martyr Conundrum
Adnan A Zulfiqar

The Matter of Personae in Medieval Italy
Melissa Vise

‘Our Practice Has a Superiority:’ Debt Enforcement, Bills of Exchange, and Credit in Eighteenth-Century Glasgow
Hunter Harris

Book Reviews

Eric L Muller, Lawyer, Jailer, Ally, Foe: Complicity and Conscience in America’s World War II Concentration Camps
Gabriel J Chin

Brent Salter, Negotiating Copyright in the American Theatre: 1856–1951
Oren Bracha

 --Dan Ernst

JACH (Fall 2023)

The Journal of American Constitutional History has just published its Fall 2023 issue:

The Mob Lawyer’s Constitution, by Sara Mayeux

In investigating constitutional history, legal scholars often focus on elite legal actors and Supreme Court doctrine. This article draws upon pop-culture sources to reconstruct the constitutional rhetoric of mob lawyers, drug lawyers, and other icons of the high-priced criminal defense bar, from the 1970s through the 1990s—the heyday of federal organized crime prosecutions and thus, of the lawyers who defended against them.

Thomas Burke and State Sovereignty, 1777, by Aaron N. Coleman and Adam L. Tate

By exploring the context of Thomas Burke’s words and actions in 1777 to understand better his call for what became Article II of the Articles of Confederation, this article challenges long-held scholarly opinions, allowing Burke to emerge as an important theorist of federalism, rather than a neglected or dismissed member of the American founding.

Reviews & Responses

In 2020, Professors Anthony J. Bellia and Bradford R. Clark published “The International Law Origins of American Federalism,” in the Columbia Law Review, arguing that the word “state” in the Constitution was widely and tacitly understood to refer to independent, sovereign nation-states, as in European international law theory at the time. The articles that follow re-examine that thesis, with a reply from Bellia and Clark.

The International Law Origins of Compact Theory: A Critique of Bellia & Clark on Federalism,   by David S. Schwartz

The thesis in “The International Law Origins of American Federalism” is mistaken: the Framers consistently and systematically rejected an international law conception of federalism. While Bellia & Clark’s article could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.

Peerless History, Meaningless Origins, by Martin S. Flaherty

The founding history set out in “The International Law Origins of American Federalism” has the potential of influencing, or at least legitimating, major doctrinal trends at the Supreme Court—yet it does so with little to no evidence, at least from historical, rather than legal, scholarly standards.

Federalism, The Law of Nations, and The Excluded Middle, by Ryan C. Williams

This essay seeks to steer a middle path between the extremes of “The International Law Origins of American Federalism” and Professor David Schwartz’s response piece; while the Constitution of 1787 reflected a clear break with the “pure” treaty model, law-of-nations principles might usefully guide and inform modern under-standings of federalism—at least to some degree.
 
[Coming soon: Response from Profs. Bellia & Clark]

Baude, Campbell and Sachs on "General Law" and the 14th Amendment

William Baude, University of Chicago Law School, Jud Campbell, Stanford Law School, and Stephen E. Sachs, Harvard Law School, have posted General Law and the Fourteenth Amendment, which is forthcoming in the Stanford Law Review:

The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights.

This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written.

To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”

--Dan Ernst

Cromwell Foundation Legal History Article of the Year Prize to Ablavsky

[We have the following announcement.  DRE.]

November 13, 2023
New York, New York

The William Nelson Cromwell Foundation announced today that its inaugural Legal History Article of the Year Prize was awarded to Gregory Ablavsky of Stanford Law School for his article, “Getting Public Rights Wrong: The Lost History of the Private Land Claims,” 74 Stan. L. Rev. 277 (2022).  

In “Getting Public Rights Wrong,” Ablavksy takes up the subject of “public rights,” a category the U.S. Supreme Court has used since 1856 to designate those rights susceptible to federal administrative adjudication rather than adjudication in the Article III courts.  Ablavsky’s article recovers a “sprawling jurisprudence” from the nineteenth century involving private land claims by the inhabitants of territories ceded to the United States by foreign sovereigns.  As Ablavsky ably shows, nineteenth-century courts treated the resolution of such private land claims as “the paradigmatic example of public rights that could be resolved by administrative adjudication.”  “Getting Public Rights Wrong” establishes a fundamental point that has heretofore gone misunderstood in the historical literature, with serious consequences in the jurisprudence of the twenty-first-century administrative state.  “Throughout the nineteenth century,” Ablavsky writes, “the administrative adjudication of at least one form of vested rights to private property was constitutionally permissible.”

The William Nelson Cromwell Foundation, established by William Nelson Cromwell in 1930, supports work in American legal history.  The Foundation has long awarded Early Scholar prizes and fellowships to early career scholars in the field of American legal history. The Foundation’s new prize for the legal history article of the year, which includes a $10,000 award, is intended to recognize the growing role of legal history and teaching and research in law schools. The new annual prize is awarded for the best article in the field of legal history, written by a legal scholar, or published in a journal of legal scholarship. This is the first prize the Foundation has offered which is open to scholars of any level of seniority. The prize committee, chaired by Foundation trustee John Fabian Witt (Yale Law School), consisted of Foundation trustees Sarah Barringer Gordon (Penn Carey Law) and John Langbein (Yale Law School), along with Dan Ernst (Georgetown Law), Amalia Kessler (Stanford Law School), Alison LaCroix (University of Chicago Law School), and Dean Troy McKenzie (NYU School of Law).  

The Foundation makes grants to support important work in all facets of American legal history including archival preservation, scholarly study of original documents, original research in all areas of the law, and research and writing of biographies of major legal figures. Information on how to apply for a prize, fellowship or grant may be found on the Foundation’s website.

Cronan on the Dutch Origins of the Foreign Emoluments Clause

Liam Cronan, the holder of a JD and MA in history from Boston University, has posted “In Defiance of Gifts”: The Dutch Origins of the Foreign Emoluments Clause:

If any lessons have emerged from the intersection of law and politics over the past half-decade, it is that the problems with and accusations of corruption—and the question of what precisely corruption means under the law—are now a mainstay of American political life. Examples are rife on both sides of the political aisle, from former President Trump’s international business dealings to the Biden Family’s connections in Ukraine to recent corruption charges against U.S. Senator Bob Menendez. This paper intends to employ the first of these, former President Trump’s business dealings, as a lens through which to understand corruption as a constitutional issue—and more specifically, the constitutional problem of foreign emoluments.

In 2017, the United States District Court for the Southern District of New York interpreted a clause in the Constitution that had, until then, been relegated among the Constitution’s “odd clauses:” Article I, Section 8, Clause 9 and its “Foreign Emoluments Clause” provision. Because of a clear “lack of precedent” on this matter, federal courts soon parsed law review articles, the Federalist Papers, letters from figures such as George Washington and James Madison, and the records of the Constitutional Convention to determine the Clause’s proper application, emphasizing the importance of “looking to historical practices” to “determine the original meaning” of the Clause. Their attempts resulted in a subtle split among circuits and left open a series of questions about the Clause’s meaning. But one source of original meaning, yet unmentioned in any case law, may aid in answering these: seventeenth-century Dutch law.

While many sources have since noted that Dutch law is the “likely” or “apparent” origin of the Clause, no scholarship has attempted to prove this through any serious interrogation of primary source materials. This paper is the first to do so. This paper traces an idea—that government officers may be barred from accepting gifts—from the Constitution we know today to the letters, speeches, and writings of the Framers to Dutch jurisprudence and the 1651 Dutch law itself. It will explore how the Framers first discovered this legal concept and how it can again function as a critical source of understanding for the Clause. 

--Dan Ernst

Mehrotra on Surrey

Ajay K. Mehrotra, Northwestern Pritzker School of Law and the American Bar Foundation, has posted The Surprising Surrey: Stanley S. Surrey as Educator, Mentor, and Institution Builder, which appeared in the symposium issue he and Lawrence Zelenak, Duke Law School, edited in Law and Contemporary Problems.  Here is the abstract:

Stanley S. Surrey is best remembered today for his many contributions to U.S. and international tax law and policy, both as a scholar and policymaker. But there is another side to Surrey, one less explored and celebrated – the “Surprising Surrey.” In addition to his many accomplishments in tax law scholarship and policymaking, Surrey was a dedicated teacher, a supportive mentor, and a leading institution builder. As a law professor, he taught for nearly three decades, traversing back and forth between the worlds of academia and policymaking. As a mentor, he guided and advanced the careers of many former students and junior colleagues in the U.S. Treasury Department, in the elite tax bar, and at Harvard Law School. And, as an institution builder, he played a pivotal role in establishing and running the International Tax Program, among many other activities at Harvard University.

In advancing these lesser-known activities, Surrey also amassed a great deal of power, authority, and prestige. His relentless ambition, drive and work ethic were the foundation for his desire to join the legal elite. This ambition and drive in turn shaped his sense of meritocracy. Given his own background and experiences, it is not surprising that Surrey had an unalterable faith in his particular sense of meritocracy—a sense that led him at times to counter traditional biases, and also to reproduce the hierarchical structure of American legal education and the profession.

This article, which is part of a Law & Contemporary Problems Symposium on “The Legacy of Stanley S. Surrey,” explores the Surprising Surrey. It relies on archival materials and original interviews, as well as Surrey's own reflections, to highlight not only Surrey’s contributions to the legal academy, but also how his career reflected changes and continuities in American legal education and the profession across the second half of the twentieth century.

The Professors Mehrotra and Zelenak’s foreword to the Symposium is here.

–Dan Ernst