[We have the following announcement. DRE]
The Centres for English Legal History and Public Law at the University of Cambridge will host a seminar by Professor Emeritus David Sugarman entitled ‘Hidden Histories of the Pinochet Case’ at 5:15pm (GMT) on December 3 in Cambridge, England. The lecture is free and open to the public and will stream online [here].
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Alastair McClure, The University of Hong Kong, has published Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922 (Cambridge University Press). It appears in the ASLH-sponsored series, Studies in Legal History.
Here are some endorsements:Trials of Sovereignty offers the first legal history of mercy and discretion in nineteenth and twentieth-century India. Through a study of large-scale amnesties, the prerogative powers of pardon, executive commutation, and judicial sentencing practices, Alastair McClure argues that discretion represented a vital facet of colonial rule. In a bloody penal order, officials and judges consistently offered reduced sentences and pardons for select subjects, encouraging others to approach state institutions and confer the colonial state with greater legitimacy. Mercy was always a contested expression of sovereign power that risked exposing colonial weakness. This vulnerability was gradually recognized by colonial subjects who deployed a range of legal and political strategies to interrogate state power and question the lofty promises of British colonial justice. By the early twentieth century, the decision to break the law and reject imperial overtures of mercy had developed into a crucial expression of anticolonial politics.
‘In this fresh and stimulating book, Alastair McClure explores the recalibrations of colonial rule which took place in the loop between calamitous violence and the exercise of mercy, between harsh punishment and its mitigation. We get a full sense of the impact of the 1857 rebellion on the codification of criminal law, and the accommodation in it of vast areas of judicial discretion to uphold both race privilege and unequal categories of colonial subjecthood. This is fine-tuned and rigorous scholarship, a major contribution to our understanding of colonial sovereignty in India and its unwinding.’ Radhika Singha, author of A Despotism of Law: Crime and Justice in Early Colonial India
‘Trials of Sovereignty offers a compelling history of the ensnaring promise of mercy and its rejection in colonial India. Breaking with the conventional idea that sovereignty was solely built on state violence, Alastair McClure traces how terror and mercy were wielded as related expressions of sovereign power in the courtroom. From the last Mughal emperor to Mohandas Gandhi, McClure's meticulous analysis of modern India’s iconic political trials unearths mercy's fingerprints throughout colonial legal history. Because mercy was a crucial colonial tool for curtailing political rights and upholding a hierarchical social order, its rejection was pivotal to ideas of anti-colonial liberation. Trials prompts us to ask: who has the right to punish and by what measure? Posed as a question for the historian, McClure lays bare its significance to our unfinished present.’ Bhavani Raman, author of Document Raj: Writing and Scribes in Early Colonial South India
--Dan Ernst
Preston Jordan Lim, Villanova University Charles Widger School of Law, has posted The Great Depression and Canada's Major Originalist Decade, which is forthcoming in the Osgoode Hall Law Journal:
Few periods of Canadian history have been as momentous or terrible as the Great Depression. The Dominion and provincial governments’ inability to combat financial and environmental catastrophe led many Canadians to openly question the appropriateness of their constitutional framework. As legal historians have since documented, many leading jurists of the time believed that a strong central government could, through the institution of national programs, contain the Great Depression; in the eyes of these 1930s jurists, the Judicial Committee of the Privy Council—then Canada’s apex court—had sapped the federal government of its powers by misinterpreting the British North America Act, 1867.--Dan Ernst
Although scholars have correctly identified the Great Depression as a period of intellectual ferment and even revolution, none has fully accounted for the prevalence of originalist thought in the legal debates of the time. In response to the Great Depression, the major legal thinkers and reformers of the 1930s deployed originalist arguments. They criticized the Privy Council for having departed from the original intentions of the Fathers of Confederation and the original meaning of the Constitution. While the leading jurists of the period all tended to employ originalist reasoning, they often disagreed on interpretive outcomes. Thus, while many jurists used originalist reasoning to argue in favour of a strong central government, some argued that the original intentions of the Framers and the original public meaning of constitutional provisions favoured a federalist interpretation of the British North America Act. I conclude that the dominance of originalism during the legal debates of the 1930s bears several lessons for modern constitutional theorists. The fact, for example, that jurists of all ideological backgrounds employed originalist logic demonstrates that the characterization of originalism as inherently conservative makes little sense in the Canadian context.
[We have the following announcement from the Levin Center for Oversight and Democracy of the Wayne State University Law School. DRE.]
Today, the Levin Center for Oversight and Democracy, with the support of the U.S. Capitol Historical
“The explosive release of 2004 photos showing prisoners being tortured at Abu Ghraib Prison in Iraq shocked the American public and led to worldwide condemnation of U.S. brutality,” said Jim Townsend, director of the Levin Center. “This new Portrait in Oversight demonstrates how Congress exposed government misconduct, held U.S. military and intelligence officials accountable for what they did, and paved the way for laws to prevent this shameful history from repeating itself.”
“Checks and balances are the foundation of the American governmental system," said Jane L. Campbell, President & CEO of the U.S. Capitol Historical Society. "It's therefore vital to the health of our democracy that Congress continues to exert its power of oversight on our co-equal branches of government. The U.S. Capitol Historical Society thus commends the work of the Levin Center to inform Americans of the history of this vital process, including the aftermath of the September 11 terrorist attacks.”
The portrait is being released today in observance of the 16th anniversary of the Senate Armed Services Committee’s action on November 20, 2008, approving a 265-page report detailing how senior U.S. Department of Defense officials ordered abusive interrogation methods to be used on U.S. detainees. Six years later, on December 9, 2014, the Senate Select Committee on Intelligence released to the public a 700-page executive summary of its still classified report on the role of the Central Intelligence Agency in the misconduct.
Awarded on a competitive basis by a jury panel 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.
A completed application consists of:
Applicants should submit all materials to Clare Cushman, Executive Editor of the Journal of Supreme Court History, by May 1, 2025. The award winner will be notified by: June 1, 2025.
Past Henry J. Abraham Early Career Research Grant Awardees:
2023. M. Henry Ishitani, JD Yale Law School 2023, completing his PhD with the Yale University Department of History.
The Learned and Lived Law: Essays in Honor of Charles Donahue (Brill), edited by Elizabeth Papp Kamali, Saskia Lettmaier, and Nikitas Hatzimihail, has been published:
This wide-ranging collection of essays reflects the manifold scholarly interests of legal historian Charles Donahue, whose former students engage here with questions related to foundational Roman law concepts, the impact of the law on women and families in medieval and early modern Europe, the intersection of law and religion, and the echoes of legal ideas on later developments in American law and in world literature and philosophy. From the monks of Metz to the book sellers of colonial Boston, from fourteenth-century English charters to the writings of Faust, these essays invite you to experience law at once learned and lived.Contributors are: Charles Bartlett, Anton Chaevitch, Wim Decock, Rowan Dorin, Sally E. Hadden, Elizabeth Haluska-Rausch, Nikitas E. Hatzimihail, Samantha Kahn Herrick, Daniel Jacobs, Elizabeth Papp Kamali, Amalia D. Kessler, Saskia Lettmaier, Sara McDougall, Stuart M. McManus, Elizabeth W. Mellyn, Bharath Palle, Ryan Rowberry, Carol Symes, James R. Townshend, and John Witte, Jr.
--Dan Ernst
Call for Papers: “Queer Constitutional History” in the Journal of American Constitutional History. Guest edited by Professors Felicia Kornbluh and Marie-Amélie George
We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on “U.S. Queer Constitutional History,” to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz. We plan to publish the symposium issue in 2025 to coincide with 10th anniversary of the U.S. Supreme Court’s decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas’ concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole “substantive due process” tradition.
We invite essays on the queer constitutional history that gave rise to the Obergefell decision—including events outside of the realms of marriage, family law, or U.S. constitutional law—as well as the place of marriage equality within the Court’s broader sexual liberty jurisprudence. We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court’s decisions in related fields.
We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: “U.S.” extends beyond the mainland to include American territories and the country’s diplomatic and international relations; we take “Queer” to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; “Constitutional” refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and “History” means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues.
Abstracts are due February 1, 2025. Please submit them by email to Felicia Kornbluh (Felicia.Kornbluh@uvm.edu) and Marie-Amélie George (georgemp@wfu.edu). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately proceed the American Society for Legal History’s annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate.
Journal of Supreme Court History 49:3 has been published:
"Judge" Eugene Brooks: Supreme Court Messenger, Proponent of Black Awareness, 1881-1926
Terence Walz
"The ct is disposed to consider the merits…Wow!": Anthony Lewis Takes Us Inside the Oral Arguments in NAACP v. Alabama ex rel. Flowers (1964)
Helen J. Knowles-Gardner
An End to Rebel "Punishment": The Test Oath Cases and the Constitutional Politics of Confederate Disqualification
M. Henry Ishitani
"Our Leading Feminist": Dorothy Kenyon and the Origins of Equal Protection for Women in Hoyt v. Florida
Isabel Miller
The Judicial Bookshelf
(reviews of Michael Nelson: Vaulting Ambition: FDR's Campaign to Pack the Court, and Greg Zipes, Justice and Faith, The Frank Murphy Story.
Donald Grier Stephenson, Jr.
--Dan Ernst
The Fall/Winter 2024 issue of the California Supreme Court Historical Society Review is now available on line. Here is Editor Molly Selvin's description of its contents.
Our lead article explores the tumultuous founding of San Quentin Prison nearly 175 years ago. As the population of the new state of California grew, driven in part by the discovery of gold in 1848, so did crime. Yet, the lack of state revenue led the Legislature to force counties to house a growing number of convicted inmates in county jails, a function for which they were largely unequipped and underfunded. Building a state prison was, as McGeorge School of Law Professor Clark Kelso wrote, an “urgent priority.” But the new state had no funds and was still getting organized. Kelso details the first decades of the iconic San Quentin Prison, and of the California Supreme Court’s key role in safeguarding the public’s interest by exercising necessary oversight of the Legislature and the governor.
Also in this issue, David Ettinger notes the centennial of the California Supreme Court’s decision in Piper v. Big Pine School District. That 1924 decision ordered the school district to admit to its school Alice Piper, a 15-year-old Native American, instead of requiring her to attend a separate “Indian School.” Ettinger, a member of the Society’s board of directors, writes that Piper “is not the best known school desegregation case in the country, or even the state.” By today’s legal standards, the ruling seems obvious, he argues, but at a time when Plessy v. Ferguson was the law of the land, “it was not easy case for Alice to win,” and was an important step toward advancing equality.
Next, we conclude the history of voting rights in California produced by a UCLA research team. Part I, in our Spring/Summer ’24 issue, explored how California systematically discriminated during its first hundred years against different groups of prospective voters, employing some of the same tools used under the Jim Crow regime of the South. Part II, in this issue, focuses on the post-World War II decades during which California law gradually made voting easier and broadened those rights, while maintaining the integrity of voting systems.
Elsewhere in this issue, UC College of the Law, San Francisco Professor and former California Supreme Court Justice Joseph R. Grodin reviews former Justice Stephen Breyer’s latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. We also present the three winners of the Society’s 2024 legal writing competition. And there’s more.
Finally, a personal note from Review Editor Molly Selvin: After eight years, I am retiring as the Review’s editor. It’s been a privilege to work with so many thoughtful legal historians, professors, and practitioners. We hope you’ll enjoy this issue. Beginning with the Spring/Summer ’25 publication, the Review will rest in the capable hands of Professor Clark Kelso. As always, we welcome your comments and your article ideas. Please write to ckelso@pacific.edu.
We want to record our appreciation of Molly Selvin, for taking on what we imagine was the sometimes challenging job, common to court-based historical societies, of bridging between professors, lawyers, judges, and the public and for her earlier study (with Patricia Ebener) of civil litigation in the Los Angeles Superior Court, which was a major contribution to the genre of caseload studies and thus to our understanding the history of the American judiciary.
--Dan Ernst
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Helen J. Knowles-Gardner, Institute for Free Speech, has posted Without a Little Help from Your Friends: The Supreme Court's Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel. Patterson (1958), which is just out in the Journal of Supreme Court History:
It was a requirement that stood for almost eighty-five years. Beginning in 1939, the formal Rules of the Supreme Court stated that an amicus curiae brief could only be filed with the consent of the parties to a case (or, effective 1949, with the consent of the parties or a majority of the justices). That all changed on January 1, 2023, when Scott S. Harris, Clerk of the Court, issued a memorandum indicating that the consent requirement was no more. The legal community did not view the change as surprising, but rather as reflective of the fact that nowadays “virtually all amicus briefs are, as a practical matter, docketed,” regardless of whether consent is obtained.--Dan Ernst
Over the course of its history even when consent to file an amicus brief was withheld by one or both of the parties, the Court rarely denied a subsequent motion for leave to file the brief without the parties’ consent. This article engages in a case study of one of those rare denials – the denial of the motion filed by the American Jewish Congress (AJC) which sought to file an amicus brief in the First Amendment associational freedom case NAACP v. Alabama ex rel. Patterson (1958). The article analyzes the substance of the brief, the Court’s Rules that were in existence at the time, and the justices’ reaction to the AJC motion.
William M. Wiecek, emeritus, Syracuse University, has published The Dark Past: The US Supreme Court and African Americans, 1800-2015 (Oxford University Press):
For most of its existence, the US Supreme Court has sustained slavery, racial discrimination, segregation, racial inequality, and white preference through constitutional interpretation and legal doctrine. During America's first two centuries, slavery was the law of the land. The Court initially avoided challenging it, and in 1857, it seemed that the justices were committed to defending it with the disastrous Dred Scott decision, which denied that Black Americans could claim any rights under the Constitution. The Court also failed to sustain Congress's effort to accord rights and status to Black Americans during Reconstruction, and it accepted white supremacy in the 1896 decision in Plessy v. Ferguson, which ratified the doctrine of "separate but equal." It did better in the Civil Rights Era, 1954-1972, but then again retreated in the face of political backlash.
The Dark Past offers a historical overview and interpretive guide to all the major cases decided by US Supreme Court that have affected the freedom and rights of Black Americans since 1800. It lends coherence to what could otherwise be a disjointed chronicle of cases and connects the events of the past to the current era of racial inequality-most recently exhibited in the Shelby County v. Holder (2015) decision, which hobbled the Voting Rights Act. Throughout the six hundred volumes of the United States Reports the justices have almost never alluded to the reality of racism or used words that denote it. Only once has the phrase "white supremacy" appeared in an opinion of the Court, and only thirty or so times has a member of the Court referred to "racism." The Dark Past, on the other hand, incorporates structural racism as a principal definition of inequality in the contemporary Black legal experience as it updates and enlarges our understanding of how the legal foundations of inequality structure American society.
--Dan Ernst
Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Max Planck Dissertation Prize for European Legal History in a Global Perspective -- awarded for the first time this year. About the prize:
The Max Planck-ASLH Dissertation Prize for European Legal History in a Global Perspective will honor exceptional dissertations on topics in European legal history in global perspective and presented for PhD or JSD degrees awarded in the previous calendar year. Topics may include European legal interactions with people or places outside Europe, legal processes spanning Europe and other world regions, and developments in legal theory closely related to imperial, transnational, or trans-regional trends.This inaugural award went to Aden Knaap (Henry Chauncey ’57 Postdoctoral Fellow, Yale Jackson School of Global Affairs) for “Judging the World: International Courts and the Origins of Global Governance, 1899–1971” (Harvard University, 2023). The citation:
The 2023 Max Planck-ASLH Dissertation Prize is awarded to Aden Knaap for his dissertation “Judging the World: International Courts and the Origins of Global Governance, 1899–1971.” This deeply original, carefully researched study presents a sweeping history of world courts, from early initiatives in 1899 to the postwar origins of today’s international courts. The dissertation makes two key contributions. It emphasizes formative efforts to establish world courts in the first half of the twentieth century, an overlooked but important period, and places visions of world courts at the very center of the evolution of global governance. The dissertation reveals how plans for key international institutions, including the World Bank and the United Nations, imagined them initially as global courts. Knaap’s study is based on extensive research in multiple archives and is beautifully written. It brings together legal, diplomatic, and international history in exposing an understudied but important dimension of European and global legal history.Congratulations to Aden Knaap!
[We have the following CFP for a History of International Law Colloquium from Andrei Mamolea. DRE]
The organizers of the Boston area colloquium on the history of international law are pleased to announce a call for papers to be presented during the Spring and Fall of 2025. This initiative is organized with the support of Boston University’s Pardee School of Global Studies, which will host a series of book talks, and Harvard Law School’s Institute for Global Law & Policy, which will host the paper series.
The call is open to all scholars, covering all areas of international law and all periods of history. Because this initiative aims to build a community of scholars in the Boston area, preference will be given to those who can present in person. To be considered, please email a copy of your submission to mamolea@bu.edu by Dec. 31, 2024.
Daniel B. Rodriguez, Northwestern Law, has published Good Governing: The Police Power in the American States, with Cambridge University Press. It is available open access via Cambridge Core.
--Dan ErnstGood Governing: The Police Power in the American States is a deep historical and legal analysis of state police power, examining its origins in the founding period of the American public through the 20th century. The book reveals how American police power was intended to be a broad, but not unlimited, charter of regulatory governance, designed to implement key constitutional objectives and advance the general welfare. It explores police power's promise as a mechanism for implementing successful regulatory governance and tackling societal ills, while considering key structural issues like separation of powers and individual rights. This insightful book will shape understanding of the neglected state police power, a key part of constitutional governance in the U.S.
Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the William Nelson Cromwell Dissertation Prize ("awarded annually to the best dissertation in any area of American legal history, including constitutional and comparative studies").
This year's award went to Min Tae Cha (currently a Postdoctoral Fellow with the Nova Forum at the University of Southern California) for a dissertation titled “Constitutional Religion: Presbyterians between the British and American Empires” (Princeton University, 2023). The citation:
“Constitutional Religion” is an astonishingly ambitious project that seeks to refold religious ideas and practices into the history of Anglo-American constitutional thought. Following Presbyterians in the British Empire and the United States in the long nineteenth century, Cha reveals the extent to which debates within the Presbyterian Church over issues including disestablishment, constitution making, and empire, were not conducted in isolation. Rather, they were shaped by and in turn shaped broader political events. That Cha finds a mutually constitutive relationship between Church and State is not surprising. What commands our attention is Cha’s argument that intertwined religious and political developments -- particularly disestablishment -- led to the creation of a “fiscal-missionary” church in the long nineteenth century. In an age of revolutions, immigration, and imperial expansion, Presbyterians scrambled to win souls and organize increasingly far-flung congregations. One striking result of this was ecclesiastical constitution making, which existed in a dialectical relationship with more familiar forms of secular constitution making. Skillfully tracing this process through close readings of underutilized religious sources, Cha shows how Presbyterians deployed written constitutions in order to mobilize congregants across the globe in the face of sectarian conflict. From Scotland to the United States to the Antipodes, Presbyterian lay people and clergy searched for solutions to pressing institutional problems, often settling upon older religious ideas and practices. Indeed, Cha deftly places Presbyterian constitutionalism within a much longer tradition of religious constitutionalism, Catholic and Protestant alike, even as he elucidates how the unique pressures of modernity required creative adaptations. He likewise connects centuries-old religious thought and praxis to processes of globalization and colonization. Through painstaking archival work, he traces the movement of people, practices, and ideas across oceans, and thereby makes a case for the broader significance of Presbyterian constitutional thought.
Congratulations to Min Tae Cha!
Update: Notre Dame Law's notice of the award is here.
-- Karen Tani
Jessica Lowe, University of Virginia School of Law, has posted St. George Tucker on Article II, Section 3: A Brief Synopsis:
St. George Tucker is commonly regarded as the most important commentator on American law in the first half of the nineteenth century, and the first major post-ratification commentator on the U.S. Constitution. Tucker's edition of Blackstone's Commentaries is widely cited, but his extremely valuable law lectures, which date to the early 1790s, remain in manuscript form and are less accessible. In these lectures, Tucker examines the new Constitution and how he and others expect it to work. In the first of ten notebooks of law lectures, Tucker includes thoughts on Article II, Section 3, which has become the subject of much current national and scholarly discussion; Tucker outlines what he sees as the meaning of the clause and its applications. I became aware of this material while researching Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia (New York: Cambridge, 2019). As one of the only scholars with deep familiarity with both Tucker and his archival materials, in this short document I offer an introduction to this critical source so that it might be of use to other scholars and lawyers alike.
St. George Tucker (CWF)
--Dan Ernst
Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the election of several Honorary Fellows. As the ASLH website explains,
Election as an Honorary Fellow of the American Society for Legal History is the highest honor the Society can confer. It recognizes distinguished historians whose scholarship has shaped the broad discipline of legal history and influenced the work of others. Honorary Fellows are the scholars we admire, whom we aspire to emulate, and on whose shoulders we stand.The first fellow announced was James R. “Jim” Phillips, Professor on the Faculty of Law of the University of Toronto and Editor-in-Chief of the Osgoode Society for Canadian Legal History. The citation:
Professor Phillips has shaped the field of Canadian legal history through his own scholarship and through the dozens of scholars whose books and monographs he has shepherded to publication. Across four co-authored books, eight co-edited collections of essays, and over sixty book chapters and journal articles, Professor Phillips has deepened our understanding of a wide range of topics–criminal law, private law and the economy, judicial reform, the development of judicial independence, state relations with indigenous peoples, marriage and gender, trusts, the legal profession, prisons, and more. Professor Phillips’s earliest published work–several articles on eighteenth-century India and the East India Company–grew from his doctoral field in British imperial history. Law school, which he undertook while teaching, turned his attention to the legal history of Nova Scotia. In short order, his focus expanded to include the legal history of Canada as a whole, where, with one notable exception, his focus has remained. As field-defining as Professor Phillips’s scholarship has been, he has also built the field by encouraging and supporting the work of others. As Editor-in-Chief of the Osgoode Society for Canadian Legal History since 2006, he has overseen the publication of over sixty books, monographs, and essay collections.Read on here.
An intellectually demanding scholar and teacher of the highest caliber, Professor Jones has delivered a forceful historical vision in sweeping revisionist accounts of race and law in the American past. Working in many communities and genres, she models an astonishing synthesis of clear-eyed purpose and uncompromised engagement. She has been a mentor for many and an inspiration for still more. Her energies and productivity are legendary, not only in scholarly research and fierce writing, but in teaching, editing, and curating. Professor Jones has innovated in public history through performance, creative nonfiction, exhibitions. She teaches in the classroom and in the world. She is, in short, a powerhouse.Read on here.
There is no better example of Jones’s unabating commitment to teaching students, colleagues, and communities alike than her “Hard Histories” project at Johns Hopkins. Beginning with a research project and Special Report of Preliminary Findings authored by Jones in December 2020 on Johns Hopkins and slavery, Hard Histories has convened members of the Hopkins community to study the school’s past and its significance for the school’s present and future. “Through the lessons of hard histories,” the project promises, “we will chart a way forward.” Serving as the project’s Director, Jones has convened and presided over workshops, public conversations, art installations, and more, all designed to find new ways to unearth, confront, and work through."
Professor Solomon is recognized in Western scholarship as the foremost authority on Russian law, in both Soviet and post-Soviet variants. He has been studying and publishing in this field for almost fifty years, and has encouraged, nurtured, and inspired several generations of scholars interested in the not obvious and nonetheless vitally important question of how Russia’s legal system works. Solomon’s books and articles repeatedly challenged conventional assumptions about Russian law; these studies transformed interpretations, approaches and sources, and became classic references for scholars working on Soviet legal history. Professor Solomon has reached beyond the Russian setting in his comparative studies on authoritarian law. He was deeply engaged in Russian reforms begun in the 1990s and has assisted in international legal projects in post-Soviet states. Responding to Russia’s imperial aggression in the 21st century, Peter Solomon has been a generous advisor and host to legal specialists and scholars in or displaced from post-Soviet countries. Outstanding and innovative scholar, kind and inspiring teacher, engaged specialist on law in world history and politics, Peter Solomon is an ideal candidate to be named an honorary fellow of our society.Read on here.
He has been an active scholar of Russia’s ongoing judicial reforms and has published numerous articles on post-Soviet procedure, the criminal code, the organs of prosecution and investigation, policing, the training and behavior of judges, rights, constitutional changes, and the work of the law in an authoritarian regime. In post-Soviet countries, Solomon’s work is of vital interest to both scholars and judicial reformers.
Congratulations to Professor Phillips, Professor Jones, and Professor Solomon!
-- Karen Tani
Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to a prize named for the LHB's founder. The Mary L. Dudziak Digital Legal History Prize "is awarded annually to an outstanding digital legal history project."
This year's award went to The Proceedings of the Old Bailey, Version 9.0. The citation:
The Committee unanimously selected The Proceedings of the Old Bailey, Version 9.0, (https://www.oldbaileyonline.org/). Project Directors Tim Hitchcock, Professor Emeritus of Digital History, University of Sussex, and Robert Shoemaker, Professor Emeritus of Eighteenth-Century British History, University of Sheffield, submitted this nomination on behalf of the project team, which also included Jamie McLaughlin (software engineer), Sharon Howard (data manager), and Nick Phipps (web designer). First launched in 2003, the site hosts hand-corrected transcript accounts of around 200,000 criminal trials conducted at London’s Old Bailey from 1674 to 1913. While the underlying records, known as the Proceedings of the Old Bailey, had been consulted sporadically by social historians in the twentieth century, the digitization and search apparatus provided by the Old Bailey Online has become a definitive landmark in English legal history.Congratulations to the entire team behind this important project!
The Committee is awarding the Dudziak Prize to the newest iteration of this project, Version 9.0 This major upgrade, which was launched in 2023, is significant for three reasons. First, it makes the site more accessible and sustainable. Second, the site now allows for more user interaction and manipulation of data through Elasticsearch and in response to feedback from scholars making use of their dataset. These enhanced searching features include the presentation of results in a macroscope format as well as more categories to allow for more advanced statistical modeling. Third, the curators have added new background pages that address the historiographical developments since the site was originally created twenty years ago.
Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Anne Fleming Article Prize -- a prize that is particularly meaningful for us here at the blog. About the prize:
The Anne Fleming Article Prize is a joint prize of the the ASLH and the Business History Conference (BHC). It is awarded every other year to the author or authors of the best article published in the previous two years in either Law and History Review or Enterprise and Society on the relation of law and business/economy in any region or historical period.
For a remembrance of our late colleague Anne Fleming, follow the link.
Professor Diaz’s paper starts in 1941, when an independent engineer and inventor named Cranford Perry Walker decided to Mile a suit against Halliburton – not then the company it was to become – for patent infringement with regard to an instrument that Walker had devised and patented, christened the “Depthograph.” The Depthograph was designed to measure pressure and obstructions inside oil pipes and wells, providing vital knowledge to the booming oil industry. Walker was determined to defend his place in the market from the much larger competitor. Eventually the case went all the way to the Supreme court, where Waker was decisively defeated. From these seemingly obscure beginnings, Professor Diaz expertly unfolds a story with far-reaching implications for how intellectual property is understood and adjudicated in the US down to this day. We were unanimous in our decision. Deeply researched, beautifully crafted, and crisply written, this is an exemplary piece of scholarship in the art of bridging disciplinary divides between business and legal history.An Honorable Mention went to Nora Slonimsky (Iona University) for “‘To Save the Benefit of the Act of Parliamt’: Mapping an Early American Copyright,” Law and History Review 40.4 (2022): 625-54.
Mytheli Sreenivas, Ohio State University, has published Population, Eugenics and Reproductive Rights: Legalising Abortion in India, 1966–71 open access in South Asia: Journal of South Asian Studies:
This article analyses the 1971 passage of the Medical Termination of Pregnancy (MTP) Act, which created a framework for legal abortion in India. Examining the policy and legislative discourses that led to abortion reform, it demonstrates that the history of the MTP Act is not a simple trajectory of advancing the reproductive rights of pregnant persons. Rather, a connection to regimes of population control marked the MTP Act in enduring ways, notably by linking abortion to family planning, and by justifying the procedure as a eugenic response to disability. This history suggests why a rights-based approach to abortion has been so elusive, with enduring impact on access to abortion care.
--Dan Ernst
A Regime of Statutes: Building the Modern President in Gilded Age America (1873-1921)
Andrea Scoseria Katz
At a time when the Supreme Court is turning its sights on the administrative state and enhancing the profile and powers of the president, it is worth recalling that behind our national complex of agencies lies a one-hundred-and-thirty-year regime of statutes, a finely wrought constitutional settlement designed not only to release power, but also to contain it. We upset this balance at our peril.Sins and Omissions: Slavery and the Bill of Rights
Why did the Constitution originally contain no bill of rights? One important reason was that the delegates believed that an attempt to compose one might wreck the entire enterprise over the issue of slavery.
Book Review
Conservative Constitutionalism Reconsidered
Dennis J. Wieboldt III
Leading scholars have uniformly overlooked one of the most significant philosophical influences on conservative legal thought in the United States: natural law. With the publication of his Conservative Thought and American Constitutionalism Since the New Deal, Jonathan O’Neill has made a welcome entry into this historiographical lacuna.
Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Jane Burbank Global Legal History Prize. About the prize:
The Jane Burbank Article Prize in global legal history will be awarded annually to the best article in regional, global, imperial, comparative, or transnational legal history published in the previous calendar year. Submissions may address any topic or period, and may focus on case studies in which the analysis relates to broader processes or comparisons.This year's award went to Sarah Balakrishnan (Duke University) for “Prison of the Womb: Gender, Incarceration, and Capitalism on the Gold Coast of West Africa, c. 1500–1957,” Comparative Studies in Society and History 65:2 (2023): 296-320. The citation:
This stunningly original article challenges several dominant tendencies in the global history of prisons, particularly a persistent focus on male incarceration and an emphasis on penal practices of the colonial state. Through careful analysis of a wide range of sources, including testimony of female prisoners, Balakrishnan tells a radically new story. It centers on the incarceration of women in so-called native prisons in nineteenth-century colonial Gold Coast (southern Ghana). The phrase “prison of the womb” describes a startling pattern: captive women were threatened with impregnation in efforts to urge dept repayment and tort settlement by kin groups. Palm oil merchants targeted women and utilized the punishment to enforce collection of payments on loans and amass capital. The committee was deeply impressed by the originality of the article, its deft combination and close interpretation of varied sources, and its broader significance for the regional and global history of carceral politics and practices.
The prize committee awarded an honorable mention to Max Mishler (University of Toronto) for “‘Improper and Almost Rebellious Conduct’ Enslaved People’s Legal Politics and Abolition in the British Empire,” American Historical Review, 128:2 (2023): 648–684.
[We are moving up this CFP for 2025 Law and Humanities Workshop for Junior Scholars because the deadline of December 9 is approaching. DRE.]
Georgetown University Law Center, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture
invite submissions for the 24th meeting of the Law and Humanities Workshop for Junior Scholars, to be held at Stanford University on June 9-10, 2025.
The workshop is open to untenured professors, advanced graduate students, post-doctoral scholars, and independent scholars working in law and the humanities. In addition to drawing from numerous humanistic fields, including Black and Indigenous studies, history, literature, political theory, critical race theory, feminist theory, and philosophy, we welcome critical, qualitative work in the social sciences, including anthropology and sociology. While the scope of the Workshop is broad, we cannot consider proposals that are focused solely on quantitative social science research or that are limited to doctrinal legal research. We are especially interested in submissions from members of traditionally underrepresented groups and submissions touching on themes of anti-racism and anti-subordination. We welcome submissions from those working at regional and teaching-intensive institutions.
Based on anonymous evaluation by an interdisciplinary selection committee, between six and eight papers will be chosen for presentation at the Workshop, where two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants that may include themes connecting all of the projects, as well as discussion of the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship.
The selected papers will appear in a special issue of the Legal Scholarship Network at SSRN; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.) However, we will only accept Workshop participants whose papers are true works in progress; articles or chapters that are already in page proofs or are otherwise unable to be revised by the time of the Workshop are ineligible.
The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1250.
Submission instructions. Applications should include:
Applications are due on December 9, 2024.
If your application advances to the final stage of consideration, you will be asked to submit the full paper in early January, 2025. Please do not apply if you will not have a full paper by early January. Your application should be a summary of existing, ongoing work rather than a proposal for new or planned work.
Papers must be works-in-progress that do not exceed 10,000 words in length (including footnotes/endnotes). A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.
We ask that those submitting applications be careful to omit or redact any information in the paper summary or the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.
Applications (in Microsoft Word—no pdf files, please) will be accepted until December 9, 2024, and should be sent by e-mail to: Lawandhumanitiesworkshop@gmail.com. Please be sure to include your name, institutional affiliation (if any), and phone and email contact information in your covering email, not in the paper itself.
For more information, please send an email inquiry to Lawandhumanitiesworkshop@gmail.com
Program Committee, 2025 Law and Humanities Workshop for Junior Scholars
Sarah Barringer Gordon, University of Pennsylvania, Law & History (emerita), Chair
Hilary Schor, University of Southern California, English, Comp. Lit., & Law
Riaz Tejani, University of Redlands, School of Business & Society
Nomi Stolzenberg, University of Southern California, Law
David Eng, University of Pennsylvania, English & Asian American Studies
Clyde Spillenger, University of California Los Angeles, Law
The Law and Humanities Workshop for Junior Scholars is committed to anti-racism both inside
and outside the academy.
[We have the following CFP. DRE.]
Oaths and Oath-Taking in Historical Perspective: Britain, Ireland, and the British Empire, 1700 to the Present, 7 March 2025, Northumbria University in Newcastle.
Organisers: Henry Miller and James McConnel, Northumbria University
As the 2023 coronation of King Charles III highlighted, oaths remain a feature of modern British public life. Indeed, though largely taken for granted, oaths and declarations continue to play a much wider role within many state agencies (e.g., cabinet government, parliaments, the judiciary, the magistracy, the armed forces, and the police force). Oaths also feature in other parts of life in the UK: professions including doctors, senior lawyers, and CoE ministers are still required to take oaths. Oaths are also a requirement of some civil society groups (e.g., the Scouts) and are required for membership of some mass-membership associations (e.g., Freemasonry and Orangeism). And since 2004, oaths have been performed at UK citizenship ceremonies up and down the country. Crucially, all these oaths are not just subscribed to in writing, but also performed in person, often in a public, ceremonial context.
In recent decades, early modern historians have advanced our understandings of oaths and oath-taking. As a result, we now have a much better understanding of the role of oaths in changing conceptions of the political community, evolving crown-subject/state-citizen relations, and in relation to generating trust during the upheavals of the seventeenth century and their aftermath. However, understanding the evolution and role of oaths over the longue durée (especially beyond the early eighteenth century) requires more attention, and without assuming they inevitably declined after their early modern heyday. While in the British context, the practice of national oath-taking led by the state declined after the early eighteenth century, oaths remained in common use for a wide variety of purposes. For example, oaths were ubiquitous in civil society, taken on a peer-to-peer basis on admission to friendly societies, trade unions, and various forms of voluntary association. Similarly, although the use of oaths as religious tests to disbar non-Anglicans from public office was largely dismantled in the nineteenth century, this does not explain the varied and continued use of written and oral oaths right up to the present day. Rather than charting a decline from an early modern peak and seeing oaths as an archaic practice that retains a residual presence today, we instead want to explore the different roles that oaths perform and have performed and why this has mattered in different temporal, geographic, social, and political contexts.
This one-day interdisciplinary conference to be held on Friday 7 March 2025 at Northumbria University in Newcastle seeks to bring together early modern and modern historians, as well as scholars from across the humanities and social sciences, to consider the historical and contemporary roles of oaths and oath-taking in Britain and Ireland, and beyond. The keynote lecture will be delivered by Prof. Ted Vallance (Roehampton).
Possible topics could include, but are not confined to:
Language and rituals of oaths
Subversive oaths
Oaths and secrecy
Religious oaths and tests
Loyalty, the constitution, and the state
Assertory and promissory oaths
Perjury and oaths as legal instruments
Oaths and modernity
Oaths, business, and capitalism
Oaths, performance, practice, and behaviour
Oaths as speech acts
Oaths, vows, swearing, and promises
Oaths and dispute resolution
Oath and material culture
Literacy and oath taking
Oaths and the history of emotions
Resisting oaths
Conscience and notions of honour
Oaths and marriage
Oaths as abjurations
Oaths and professionalism
Mundane / profane oaths
Comparative perspectives on oaths and oath-taking
We welcome proposals of c. 250 words (for 15-minute in-person presentations) concerning these or other topics, to be submitted, along with a short CV, by the end of Friday, 20 December 2024. The submissions should be sent to henry.miller@northumbria.ac.uk. Proposers will be informed of the outcome in early January 2025.
We have some limited funding available to support travel and, if appropriate, accommodation, expenses costs of speakers: this will be reserved for those who are early career researchers, independent scholars, or in fixed term posts. If you wish to be considered for this financial support, please indicate your likely costs of attending the workshop; and we would also ask that you first draw on any internal sources to which you have access.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Jackson’s Judges: Six Appointments Which Shaped a Nation, by John Gregory Jacobsen, is now out from Covenant Books. Dr. Jacobsen “earned his PhD in history at the University of Nebraska and currently serves as a pastor and continues to teach history.” More.
During his two terms as Chief Executive, Andrew Jackson made six appointments to the United States Supreme Court, more than any nineteenth-century president. Ranging from the famous to the virtually unknown, this group together reflected what may be described as their appointer's nationalist-states' rights dual constitutional personality. They consisted of three late Marshall Court appointees: John McLean of Ohio in 1829, Henry Baldwin of Pennsylvania in 1830, and James Wayne of Georgia in 1835, and three appointments at the onset of the Taney era: Roger Taney of Maryland and Philip Barbour of Virginia in 1836, and John Catron of Tennessee in 1837. Together, these six justices transformed the Supreme Court. Although two earlier-appointed justices sat on the bench into the 1840s, and despite twelve additional appointments made under seven subsequent presidents, Jackson's judges, at least until the four wartime appointments of Abraham Lincoln, formed the core of the Taney Court. Such dominance did not equal unity, however, as Justices McLean and Wayne proved strong nationalists. Nor were Jackson's picks the Court's most extreme members of the antebellum era, for Martin Van Buren's two later appointments became the most agrarian, states-rights voices of the Taney era. Jackson's judges, like the Court itself, elude simple categorization.
As a study, Jackson's Judges examines the lives and jurisprudence of his six Supreme Court appointments. Its uniqueness lies in the framework; the subject is not the Marshall or Taney Court, but Jackson's judges. Joining judicial biography with case analysis, the study examines each justice in separate chapters, forming six largely self-contained, legal-focused biographies. Analysis includes personal information, political connections, and jurisprudential background and credentials. The heart of each chapter is an in-depth analysis of the subject's most profound or trademark opinion. Each justice is then considered for his contribution to constitutional history. Following a survey of the Marshall and Taney Courts is an analysis of the life and presidency of Andrew Jackson with special emphasis on his background and relationship with judiciaries. This fascinating study shows how, through six appointments to the United States Supreme Court, Andrew Jackson reflected his own dual constitutional personality while doing more than any nineteenth-century president to shape the American nation.
--Dan Ernst
David Rapallo, Georgetown University Law Center, has posted Congress’s Power to Investigate Crime: Did Trump Kill Kilbourn? which is to appear in the NYU Journal of Legislation and Public Policy:
Can Congress investigate crime? Targets of congressional investigations have tried to argue for decades that the Constitution grants Congress no authority to investigate illegal conduct, but instead vests this power exclusively in the executive and judicial branches. Former President Donald Trump was one of the most recent litigants to make this claim, repeatedly invoking a Supreme Court case from 1881, Kilbourn v. Thompson, despite the fact that the Court condemned this opinion decades ago as "severely discredited." In contrast, Congress has successfully asserted its own constitutional authority to investigate all types of activity-including illegal conduct-not to prosecute the offenders, but to inform legislation and fulfill its various other legislative branch responsibilities.
This Article sheds light on this recurrent debate by tracing its evolution across three historical periods. Since Kilbourn is central to the claims of targets of congressional investigations, the Article begins with a reexamination of that case. It unearths surprising new details about Congress's original investigation and shows how the Court devalued Congress's investigative function, mischaracterized Congress's contempt power as judicial in nature, and adopted an approach that would require Congress to yield to other branches' parallel investigations. Second, a review of more than 100 subsequent court decisions tracks the dismantling of Kilbourn's premises over time. It shows how the Court corrected its errors, recognized Congress's investigative power as derived from its legislative branch authority rather than having judicial origins, and approved numerous congressional investigations while parallel criminal inquiries were ongoing. Third, this Article examines Trump's extensive but ultimately unsuccessful campaign before courts of all levels-including the Supreme Court-to resuscitate Kilbourn to block Congress from investigating his alleged crimes. In response to the question of whether Congress may investigate crime, this Article concludes that the answer is undoubtedly yes. Rather than bringing Kilbourn back to life, Trump's efforts had the opposite effect, creating a surfeit of new precedents that solidified Congress's authority.
--Dan Ernst
Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section 3 of the Fourteenth Amendment: Is Trump's Innocence Irrelevant? which is forthcoming in the Maryland Law Review:
Much debate over whether former President Donald Trump should be disqualified under Section 3 of the Fourteenth Amendment focuses on matters tangential to whether the events of January 6, 2021, were an insurrection and whether Trump engaged in that insurrection. Debate centers on the role of Section 3 in the Reconstruction Project, whether Section 3 is self-executing, whether disqualification is a punishment that requires a criminal conviction, whether Section 3 is restricted to the Civil War, whether Presidents are exempt from disqualification, and whether the Presidency is exempt from disqualification. The existing literature rarely delves deeply into the historical sources, either assuming that the persons responsible for Section 3 were largely working from a tabula rasa or, in the manner of advocates, cherry-picking favorable citations, often wrenching them out of context.
The following pages are part of a project that engages in an exhaustive survey of the Congressional Globe, case law, legal treatises, and contemporaneous commentaries to determine how persons when Section 3 was framed and ratified would have responded to contemporary questions about the implementation of that constitutional provision. This survey supports the following conclusions. First, the constitutional disqualification of government officials who violated their oath of office was central to the Fourteenth Amendment’s goal of ensuring government by persons who could be trusted to be faithful to the Constitution. Second, with one notable exception, Americans during the 1860s regarded Section 3 as self-executing. Third, Section 3 when framed was thought to be an additional qualification for officeholding and not a punishment for crime. Fourth, Section 3 of the Fourteenth Amendment was intended to bar from office any past or present state or federal officeholder who engaged in an insurrection, not just persons who participated in what members of the 39th Congress referred to as “the late rebellion.” Fifth, the persons who framed Section 3 thought Presidents of the United States are officers of the United States who are disqualified from holding present or future federal or state offices if they engage in an insurrection after or while holding office. Sixth, the persons who framed Section 3 thought that Presidency of the United States was among the offices under the United States that past and present officeholders who participated in insurrections were disqualified from holding.
This paper speaks of what certain persons responsible for the Fourteenth Amendment thought and did rather than the original meaning of Section 3. Original meaning is a freighted term and often is used to compel contemporary constitutional decisions. In many cases, while we can determine what particular framers thought about some matters—for example, about whether Section 3 is self-executing—no good evidence exists as to what the average person thought or if the average person had any thoughts on the subject at all. Moreover, while the findings below are relevant to contemporary constitutional decision-making, they should not be decisive. The dead do not rule the living. The question for the present is whether any constitutional or political change has taken place between the time the Fourteenth Amendment was framed and ratified and the present that would justify acting inconsistently with the framing expectation that oath-breaking Presidents should be disqualified under Section 3.
--Dan Ernst
