Tuesday, January 24, 2017

The Chapter from Hell

Recently I served on a search committee for an open rank position in African American history at my school. It was wonderful to read the scholarship in this field that is tangentially related to my work and learn about its exciting trends and new directions. As part of the search process, we asked candidates to situate their work within the field and comment on both its fit and contribution. In other words, we asked candidates to summarize their work in five minutes and tell us why it is important. I chose to ask candidates questions about writing challenges—methodological or otherwise. This proved an even harder question for candidates, but I used it as an opportunity to gauge their candor and thoughtfulness on the process of their scholarship.

We all know that some chapters are just hell to write. You don’t like them, or you don’t like the historical subjects whom the chapter revolves around, or you aren’t jazzed about the topic. Since we chart our own writing course, why do we make ourselves write about something or people whom we do not like? I’m not talking about the obligatory chapters like the lit review—that can actually be quite fun to write. I mean that chapter that you may have written hastily or kept on the back burner. It’s the one that’s the least workshopped and as a result has never benefitted from the curating of our more polished and favorite chapters. That chapter is something of an orphan.  

My chapter from hell was literally the last chapter that I wrote. This was not a Freudian moment; it just unfolded in trajectory pf the book's argument that it was the last chapter. I wrote about “defective” slave sales—redhibitory actions in which aggrieved buyers claim they were duped by unscrupulous sellers who hid slave “defects” in the transaction. For US readers, causes of redhibition appear principally in the Louisiana records. However they are common in all slave markets. In effect, redhibition as a cause of action based on implied warranties was worked out almost exclusively around slave purchases and rescission—similarly to the way that rules of possession were developed around foxes and whales.

CFP: Legal History and Diplomacy

Via New Diplomatic History, we have the following Call for Papers:
CALL FOR PAPERS Training, Ideas and Practices. The Law of Nations in the Long Eighteenth Century (Paris, 18-19 May 2017); DEADLINE 20 FEBRUARY 2017
The purpose of this conference is to explore the roots of international law and the various concepts related to the “law of nations” by looking at the legal language of diplomats and foreign offices in Europe during the long eighteenth century. The conference also aims to render the variety and complexity of specific mechanisms through which the law of nations was applied for diplomatic use, to explore social and cultural aspects, and to investigate the practical questions that diplomats frequently faced (N. Drocourt & E. Schnakenbourg (eds.), Thémis en diplomatie, PURennes, 2016).
The relationship between diplomacy and the law of nations is at best ambiguous. On the one hand, the law of nations seems to be a hybrid product of philosophical concepts and a digest of diplomatic practice. Lawyers have difficulty resisting the temptation to write a purely academic or genealogical history of the law of nations. The frequent invocation of authors such as Vattel as an authority seems to support this (P. Haggenmacher & V. Chetail (eds.), Vattel’s International Law from a XXIst Century Perspective, Brill, 2011). On the other hand, interaction in negotiations involves a lot more than invoked legal principles. A thorough analysis of diplomatic practice often reveals implicit rules within diplomacy as a social field (P. Bourdieu, Sur l’Etat, Seuil, 2012). Legal arguments are a part of this microcosm, but geopolitical determinants and state interests can bend and bow the use of legal language.
One of the main issues of this conference will be whether law of nations theories influenced diplomatic practice and at the same time whether diplomatic practice altered traditional law of nations concepts. Through fruitful dialogue between young legal historians, historians of political thought and historians of politics from France, Germany and other parts of Europe, we would like to explore and investigate three different scenarios in which law of nations theories emerged both in the practice and the doctrine of diplomacy:
1) Training of diplomats
Was the law of nations the basis of diplomatic education? Did diplomats also receive specific, in-house, foreign affairs training? Was it only theoretical or also based on practice and experience? Was there already a form of professionalisation of diplomats, especially in view of later developments in the 19th century (L. Nuzzo & M. Vec (dir.), Constructing International Law – The Birth of a Discipline, V. Klostermann, 2012)? Finally, to what extent can we envisage a common European diplomatic culture?
2) Circulation of ideas and diplomatic networks
What was the legal and intellectual background of the various traités du droit des gens? To what extent were legal expertise (G. Braun, La connaissance du Saint-Empire en France du baroque aux Lumières (1643-1756), De Gruyter, 2010) or legal rhetorics pragmatic tools used in everyday politics? For whom did thinkers such as Abbé de Saint-Pierre (1658-1743) write their treatises? The sovereign? Legal advisers? Public opinion? If the law of nations formed a kind of a common European diplomatic culture, how did it spread throughout Europe? Can we identify the same use in various diplomatic flows of the time? How were diplomatic networks organised? Can we find examples of specific territories – such as the principalities of Walachia and Moldova, between the Ottoman Empire and the “European” powers – functioning as kinds of “diplomatic hubs”?
3) Transformation
Is the diplomatic habitus of the Vienna Congress a turning point? Where did the transition from the 18th to the 19th century take place, both in theory and in practice? How important was the impact of Enlightenment and French Revolutionary thought (M. Bélissa, Fraternité universelle et intérêt national, 1713-1795, Kimé, 1998)? How far can we find echoes in diplomatic culture and correspondence?
We kindly invite young scholars (up to 6 years after PhD) to present their new research within French-German and European perspectives. All applications must be sent by 20 February 2017 with a short CV (5 to 10 lines) and a proposal of 400 words to diplomacyconference2017@gmail.com. Results will be communicated by 15 March 2017. This conference has received the generous support of the CIERA (Centre interdisciplinaire d’études et de recherches sur l’Allemagne, www.ciera.fr) as a colloque junior and will take place on the 18th (afternoon) and 19th (morning) of May 2017.
Papers can be presented in English, French or German. A peer-reviewed publication of the proceedings is envisaged.
Organising Committee
Raphael Cahen (Orléans/VUB-FWO)
Frederik Dhondt (VUB/Antwerp/Ghent-FWO)
Elisabetta Fiocchi Malaspina
Scientific Committee
Jacques Bouineau (La Rochelle)
Paul De Hert (VUB)
Dirk Heirbaut (Ghent)
Christine Lebeau (Paris I)
Gabriella Silvestrini (Piemonte Orientale)
Matthias Schmoeckel (Bonn)
Antonio Trampus (Venezia)
Miloš Vec (Vienna)

Commentaries on The King's Two Bodies

Law, Culture and the Humanities 13:1 has published a commentary section on Ernst Kantorowicz's classic work, The King's Two Bodies. 

Here are the abstracts:

Stephanie Elsky, "Ernst Kantorowicz, Shakespeare, and the Humanities' Two Bodies"


This commentary reflects on two very different revivals of Ernst Kantorowicz’s The King’s Two Bodies: A Study in Medieval Political Theology in the field of early modern studies, the first during the heyday of New Historicism and the second in the current post-New Historicist moment that is still defining itself. The first revival focused on the literal meaning of king’s two bodies, the second on its figurative and fictional nature. The first trained its lens on the doctrine’s absolutist potential, the second on its constitutionalist strain. To account for these political and literary shifts I turn to a larger trend in literary and humanistic studies, the desire to move away from ideology critique and to reframe the humanities in terms of its capacity to articulate “a new vision for human community,” to borrow Victoria Kahn’s phrase. I argue that the peculiarly ironic status of the king’s two bodies offers a way to intervene in this debate, which I term “the humanities’ two bodies.” The commentary concludes by offering Laertes’ popular rebellion in Hamlet as a brief test case of the limits and promise of this most recent turn in the career of Kantorowicz’s protean text.

Karl Shoemaker, "The King's Two Bodies as Lamentation"


The King’s Two Bodies is, as has long been recognized, a genealogy of modern state power. But it is also something else less clearly recognized. The King’s Two Bodies is a lamentation. In Kantorowicz’s poignant eulogy, the sovereign that medieval lawyers had made in the imago dei, was revealed at last to be an idol. Profound reverence for the rule of law crumbled into absent-minded legality. The lawful sovereign became diabolical power, forever deciding exceptions but incapable of justice or grace. In The King’s Two Bodies, Kantorowicz mournfully shows how the death and tragic afterlife of a particular medieval concept of sovereignty helped to make possible the horrors of modern political absolutism and state idolatry.

Paul Raffield, "Time, Equity, and the Artifice of English Law: Reflections on The King's Two Bodies"


The aim of this article is to analyze the contribution of the early modern English legal institution to the formulation of the theory of the king’s two bodies. I explore three principal themes in the course of this article, all of which relate directly to central tenets of the thesis proposed by Kantorowicz in The King’s Two Bodies. First, is the centrality of time and continuity to theories of kingship and to the ideology of common law. Secondly, I consider the importance of equity to the formulation of decision-making in English law, and in pursuit of this end, the manipulation by the judiciary of political theology concerning the king’s two bodies. Lastly, I analyze the persuasive power of the trope, and especially the capacity of metaphor and metonym to embody such invisible and intangible juristic concepts as justice, equity, and law itself. Whilst recognizing the magisterial quality of Kantorowicz’s magnum opus, I take issue with some of the more extravagant of the author’s claims for the pervasive power of mystical kingship and its influence over English jurists and the English legal profession.

Sarah Burgess, "The Sovereign Claims from Within: The Rhetorical Displacement of Sovereign Bodies in Adoptive Couple v. Baby Girl"


This article considers the impact of Ernst Kantorowicz’s The King’s Two Bodies for understanding how claims of sovereignty are authorized and legitimated in a secular age devoid of the divine grace that underwrites the sovereignty of the king in medieval times. Through a reading of Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013), a case concerning the custody of a child of Cherokee descent, it demonstrates that sovereign bodies are constituted, (dis)placed, and recognized through an appeal to biopolitical logics. This insight is important as it invites a form of rhetorical critique that might account for the conditions in which sovereign claims fashion the terms of political community.

Ely on Eminent Domain, Confiscation and Redistribution

James W. Ely Jr. Vanderbilt University Law School, has posted Are Eminent Domain and Confiscation Vehicles for Wealth Redistribution? A Skeptical View, which is forthcoming in volume 6 of the Brigham-Kanner Property Rights Conference Journal:
This article gives historical perspective to contemporary calls for a redistribution of economic resources in the United States. It notes that before 1900 constitutional doctrine was heavily concerned with curtailing state efforts to redistribute wealth. This view was gradually abandoned in the early twentieth century, and the New Deal Supreme Court largely punted the question of wealth redistribution to the political branches of government. Noting that there are redistributive aspects to current public policy, this article focuses on whether the exercise of eminent domain or occasional resort to outright confiscation of property have in fact operated to redistribute wealth in American history. It concludes that eminent domain has often been employed to serve the interests of individuals and institutions with political clout rather than the poor. Confiscation of property without compensation has occasionally been employed in or past, but without notable redistributive consequences. The most striking example of confiscation concerned Loyalist-owned property during the Revolutionary Era. Most of the confiscated property was purchased by existing landowners, and consequently the confiscation policy produced little change in wealth patterns. The Union was markedly reluctant to press confiscation of property owned by Confederates during the Civil War and Reconstruction, and seemingly rejected confiscation as an appropriate policy. State prohibition of alcoholic beverages in the nineteenth century entailed the destruction of previously lawful property, but had no redistributive impact. The article concludes by arguing that neither eminent domain nor confiscation have proven effective vehicles for wealth redistribution to the poor over the course of American history.

Monday, January 23, 2017

Barbas's "Newsworthy"

Just out from the Stanford University Press is Newsworthy: The Supreme Court Battle over Privacy and Press Freedom, by Samantha Barbas, Professor of Law at University at Buffalo Law School.
In 1952, the Hill family was held hostage by escaped convicts in their suburban Pennsylvania home. The family of seven was trapped for nineteen hours by three fugitives who treated them politely, took their clothes and car, and left them unharmed. The Hills quickly became the subject of international media coverage. Public interest eventually died out, and the Hills went back to their ordinary, obscure lives. Until, a few years later, the Hills were once again unwillingly thrust into the spotlight by the media—with a best-selling novel loosely based on their ordeal, a play, a big-budget Hollywood adaptation starring Humphrey Bogart, and an article in Life magazine. Newsworthy is the story of their story, the media firestorm that ensued, and their legal fight to end unwanted, embarrassing, distorted public exposure that ended in personal tragedy. This story led to an important 1967 Supreme Court decision—Time, Inc. v. Hill—that still influences our approach to privacy and freedom of the press.

Newsworthy draws on personal interviews, unexplored legal records, and archival material, including the papers and correspondence of Richard Nixon (who, prior to his presidency, was a Wall Street lawyer and argued the Hill family's case before the Supreme Court), Leonard Garment, Joseph Hayes, Earl Warren, Hugo Black, William Douglas, and Abe Fortas. Samantha Barbas explores the legal, cultural, and political wars waged around this seminal privacy and First Amendment case. This is a story of how American law and culture struggled to define and reconcile the right of privacy and the rights of the press at a critical point in history—when the news media were at the peak of their authority and when cultural and political exigencies pushed free expression rights to the forefront of social debate. Newsworthy weaves together a fascinating account of the rise of big media in America and the public's complex, ongoing love-hate affair with the press.
Some endorsements:
"This fascinating book journeys back to a transformative moment in Supreme Court history, when it declared that the Constitution protected the press's invasion of privacy of newsworthy subjects. Newsworthy inspires us to imagine what American society might look like today had the decision gone the other way."

—Laura Kalman, University of California, Santa Barbara

"With a compelling narrative of the important and fascinating Supreme Court case of Time, Inc. v. Hill, Newsworthy is a valuable addition to the volatile debate over the tension between freedom of the press and the right to privacy in the U.S."

—Stephen Wermiel, co-author of Justice Brennan: Liberal Champion

Frankfurter Speaks! So Does (Paul) Freund!!

Et Seq., the blog of the Harvard Law School Library, reports that HLS’s Historical & Special Collections department is in the process of digitizing some of its “thousands of audiovisual artifacts.”  Available now is “A Lawyer’s Place in Our Society," wherein Justice Felix Frankfurter (1882-1965) is interviewed by Prof. Paul A. Freund (1908-1992), recorded on 16mm film in the early 1960s and transferred later to u-matic tape, the copy from which the digital transfer was made.”
Justice Felix Frankfurter (LC)
The two were close friends, and it’s evidenced by their comfortable and well-articulated conversation. Justice Frankfurter’s thoughts often circle back to some common themes. He believes very much that the lawyer should also be a civic leader, attributing this requirement to the changing nature of the law: as law and government historically expands into affecting everyday lives, the lawyer increasingly needs to be an active citizen. Both Freund and Frankfurter share the opinion that great lawyers shall be exceptionally well-read (because “even with the greatest breadth of personal experience, it’s infinitesimal compared with the accumulated experience of mankind, and the accumulated experience of mankind is predominantly contained in the covers of books,” [25:00]) and involved in many activities outside of the field of law.

In addition to unsurprising homages to Louis D. Brandeis (1856-1941) and Oliver Wendell Holmes (1841-1935), Frankfurter goes on at length about the influence that his early mentor, Henry L. Stimson, had on him. Through his work with the then-U.S. Attorney for the Southern District of New York, he learned, “first and foremost, a sense of the deep responsibilities of all those who are concerned with the administration of the criminal law – the awfulness of the instruments by which men may lose their liberties and sometimes lose their lives as the result of a process of law” (28:00). Stimson would have preferred for search warrants to only be issued by a judicial officer, but absent that reality, he had his assistants accompany officers enforcing large search and seizure operations to ensure that they adhered strictly to the warrant and seized only the property that was explicitly described.

Garfinkel's "Criminal Law in Liberal and Fascist Italy"

Paul Garfinkel, Simon Fraser University, British Columbia, has published Criminal Law in Liberal and Fascist Italy in the series Studies in Legal History at the Cambridge University Press:
By extending the chronological parameters of existing scholarship, and by focusing on legal experts' overriding and enduring concern with 'dangerous' forms of common crime, this study offers a major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–43). Garfinkel argues that scholars have long overstated the influence of positivist criminology on Italian legal culture and that the kingdom's penal-reform movement was driven not by the radical criminological theories of Cesare Lombroso, but instead by a growing body of statistics and legal researches that related rising rates of crime to the instability of the Italian state. Drawing on a vast array of archival, legal and official sources, the author explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.
Here are some endorsements:
"Professor Garfinkel's book is one of those rare works of original scholarship that succeeds in covering both the Liberal and Fascist eras in Italian history at the national level. By concentrating on common crime rather than political crimes, he has developed an extremely original thesis that challenges the established interpretations of jurisprudence in the nineteenth and twentieth centuries." Anthony Cardoza, Loyola University, Chicago 
"Paul Garfinkel's vivid account of the development of Italian criminal justice from the perspective of prominent criminal law practitioners relies on a stunning array of sources to craft a convincing argument. An insightful contribution to the study of European law and society, the book offers an important counterpoint to prevailing historiography." Maura Hametz, Old Dominion University, Virginia 
"Eloquently written, and with a welcome focus on the treatment of ordinary rather than political crime, Garfinkel's ground-breaking book persuasively challenges scholarly understandings of the ideas and debates inspiring penal reform in Liberal Italy and the first decade of Mussolini's fascist regime." Jonathan Dunnage, Swansea University 
"This elegantly written and widely researched study of criminal law in liberal and fascist Italy challenges the widely accepted view that Italy's 1930 criminal law code was fascist, positivist and anti-liberal in inspiration. Engaging with the wider debates on the relationship between liberalism and fascism, Paul Garfinkel's conclusions will attract the attention of scholars in many different fields." John Davis, University of Connecticut

Saturday, January 21, 2017

Weekend Roundup

  • Call for Applications: the 2017 Summer Institute on Conducting Archival Research at the Woodrow Wilson Center’s History and Public Policy Program.  "The Summer Institute on Conducting Archival Research (SICAR) is a multi-day seminar in which Ph.D. students receive training in conducting archival research from world-class faculty, researchers, archivists, and publishers. Although archival research is an integral part of many academic disciplines, it is virtually never taught at the graduate level. SICAR fills this critical gap in graduate education."
  • Hat tip to @LHR_editor for retweeting this Guide to 19th Century Legal Documents, prepared by the Civil War Governors of Kentucky Project of the Kentucky Historical Society to explain  the parts of typical documents, their function, and where they tend to appear “within the CWGK corpus.”
  • Martha Nussbaum, University of Chicago, is to deliver the 2017 Jefferson Lecture in the Humanities on “Powerlessness and the Politics of Blame."
  • The Franklin D. Roosevelt Presidential Library and Museum and the Mid-Hudson Antislavery History Project -- in commemoration of African American History Month -- will present "An American Paradox: Enslavement on the Hudson" with Associate Director of Content Development at Historic Hudson Valley Michael A. Lord on Thursday, February 2, 2017. The program will begin at 7:00 p.m. in the Henry A. Wallace Visitor and Education Center. This event is free and open to the public.”   More.
  • Update: A fun fact from Mark Tushnet: "For more than 125 years, the Senate has not confirmed a Supreme Court nominee chosen by a president who lost the popular vote."  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 20, 2017

Historians' Perspectives on the Rise of Donald J. Trump

The Organization of American Historians has long has a lectureship program, with speakers contributing their fee to the OAH.  It has now launched a new initiative, Historians' Perspectives on the Rise of Donald J. Trump:
The 2016 presidential race and the election of Donald J. Trump as the 45th President of the United States revealed divisive social, cultural, and political issues convulsing the United States, many of which have deep historical roots.

The members of the Organization of American Historians, a professional society devoted to the teaching and study of U.S. history, can offer a valuable public service during these fractious times by providing historical perspectives on present events.
Speakers and their topics appear here.  A post by one of the participating speakers, Marjorie Spruill, University of South Carolina, entitled, Women Unite! Lessons from 1977 for 2017, went up today on the OAH’s blog, Process.

IRBs and Oral History

We quote from an update from the Organization of American Historians:
On January 19 the federal government issued its final rule governing Institutional Review Boards (IRB) which "explicitly removes" oral history and journalism from the Federal Policy for the Protection of Human Subjects. It was originally promulgated as the "Common Rule" in 1991. The historical community, collaborating through the National Coalition for History, has long argued that scholarly history projects should not be subject to standard IRB procedures since they are designed for the research practices of the sciences. The new rule goes into effect January 19, 2018.
Here's the rule.

Scheiber, ed.: New Volume on the History of the California Supreme Court

The California Supreme Court Historical Society has published Constitutional Governance and Judicial Power: The History of the California Supreme Court, edited by Harry N. Scheiber (University of California, Berkeley). A description from the Press:
Constitutional Governance and Judicial Power tells the story of the Court, from its founding at the dawn of statehood to modern-day rulings on issues such as technology, privacy, and immigrant rights. In this comprehensive history, we see the Court’s pioneering rulings on the status of women, constitutional guarantees regarding law enforcement, the environment, civil rights and desegregation, affirmative action, and tort liability law reform. Here too are the swings in the Court’s center of gravity, from periods of staunch conservatism to others of vigorous reform. And here is the detailed history of an extraordinary political controversy centered on the death penalty and Chief Justice Rose Bird. California has led the way in many varied aspects of American life, including the law. Constitutional Governance and Judicial Power gathers the many strands of legal history that make up the amazing story of the California Supreme Court.
A list of contributors is available here, alongside advance reviews by Gerald Uelman and the late Kevin Starr, among others.

Thursday, January 19, 2017

On Cabbages and Kings: Or writing the Favorite Chapter

The time has come the walrus said to talk of many things. I’ve already talked about the introduction and the importance of your cover choices. Now it’s time to talk about the chapters. Some chapters will be a stately walk through your archival evidence to back up your historiographical claims. Unexciting but solid, establishing your scholarly credibility. You should not have too many of these or else the monograph will read too much like a dissertation defense and lack originality. Some chapters will flow beautifully and be a pleasure to write. Others will be hell to write and you will hate them. You will struggle with them and leave them till the end—like folding the odd socks last that accumulated after doing a week’s worth of laundry. The latter was referred to in my household for at least three years as That Damn Chapter.

As you review everything you’ve written that you’ve stored dutifully in a folder in your laptop—you scan the evidence and the arguments that inexorably lead to the writing of The Book. Great! But when you dig deeper into that file folder, you’ll find extraneous things. What about the 8 page double spaced paper that you wrote (for some panel?) at some annual conference? There were kernels of wisdom in there. What about the edited volume that you contributed an abstract to that fell through? Remember you are keeping to your goal of 600 words per day. The beautiful thing about repurposing what you wrote before is that those words count towards your daily goal! You need to look at your research question (pinned prominently on the wall above your computer) to see whether this conference paper/abstract and its argument and its evidence fit into the book. If not—out with it. As an archive rat, I know how hard it is to let go of evidence that is painstakingly gathered, annotated, transcribed.  My research question written in bold capital letters was: how did intimacy order slavery and how did slavery order intimacy? If I had evidence that did not speak to that question—I sucked it up and chucked it. TBH: I made another folder and dumped it in there under TBD. We are historians after all—for a beautiful rumination on our attachment to archival detritus, read Carolyn Steedman’s Dust.

Strange on Pardon and Parole

Carolyn Strange, Australian National University has published Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression with NYU Press. From the publisher:
The pardon is an act of mercy, tied to the divine right of kings. Why did New York retain this mode of discretionary justice after the Revolution? And how did governors’ use of this prerogative change with the advent of the penitentiary and the introduction of parole? This book answers these questions by mining previously unexplored evidence held in official pardon registers, clemency files, prisoner aid association reports and parole records.

This is the first book to analyze the histories of mercy and parole through the same lens, as related but distinct forms of discretionary decision-making. It draws on governors’ public papers and private correspondence to probe their approach to clemency, and it uses qualitative and quantitative methods to profile petitions for mercy, highlighting controversial cases that stirred public debate. Political pressure to render the use of discretion more certain and less personal grew stronger over the nineteenth century, peaking during constitutional conventions and reaching its height in the Progressive Era. Yet, New York’s legislators left the power to pardon in the governor’s hands, where it remains today.  

Unlike previous works that portray parole as the successor to the pardon, this book shows that reliance upon and faith in discretion has proven remarkably resilient, even in the state that led the world toward penal modernity.

Praise for the book:


Exploiting a wide range of new sources, this original and innovative book illuminates the importance of the criminal law to race, gender, and social and political power in America from an entirely new perspective. It puts the spotlight on prison reform and capital punishment at the state level in the most important jurisdiction in the country. An invaluable contribution to understanding the complex history of criminal law and punishment over 150 years. -Douglas C. Hay


This book offers a wonderful history of pardon and parole and, at the same time, a sophisticated analysis of discretionary justice. I know of no other book like it. Focusing on the state of New York, it is a pleasure to read. Scholars interested in understanding the complexities of pardon and parole and the rise of the administrative state will find this book to be an invaluable resource. -Austin Sarat


For good reason, issues of criminal law and criminal justice in the United States recently have become a subject of both popular and academic interest. While scholars of law and history have done much to explore the problems and perspectives in the past that have helped give rise to the workings of criminal justice in the present, much more needs to be done, particularly in the less familiar areas of criminal law, like pardon and parole. This book offers a welcome exploration of how and why New York state handled those less visible aspects of criminal law up through the first decades of the twentieth century. In the process of unpacking New York’s pardon and parole systems, it helps us understand the nature of discretionary justice and the ways in which law and politics could and did intersect. -Elizabeth Dale


More information is available here.

Sellars on British Efforts to Try the Kaiser

Kirsten Sellars, Chinese University of Hong Kong Faculty of Law, has posted The First World War, Wilhelm II, and Article 227: The Origin of the Idea of "Aggression" in International Criminal Law, which appears in The Crime of Aggression: A Commentary, ed. Claus Kress and Stefan Barriga (Cambridge University Press, 2016):
It is well known that David Lloyd George declared his intent to try the Kaiser for starting World War I, but it is not known that British lawyers embarked on detailed behind-the-scenes plans for prosecuting him — plans now brought to light in newly uncovered archival documents.

At the end of the First World War, Lloyd George declared: "The Kaiser must be prosecuted. The war was a crime." This was a radical departure from the traditional approach to war, advancing the then-novel ideas that starting an aggressive war was a crime, and that national leader could be held criminally responsible.

After the signing of the Versailles Treaty in June 1919, the British Attorney General, Sir Gordon Hewart, quietly began laying the groundwork for Wilhelm II’s prosecution, in case the latter fell into entente hands. These plans – unheralded then and overlooked since – were set in motion in August 1919, when Hewart convened a meeting between himself, the Solicitor General, the Procurator General, and two senior barristers, Frederick Pollock and George Branson.

As it turned out, the ex-Kaiser never faced trial. Six days after the Versailles Treaty came into force, the entente powers requested that the Netherlands, where Wilhelm II had sought asylum, deliver him for trial. The Dutch refused, and Hewart pulled the plug on the British prosecution project.

Wednesday, January 18, 2017

Gender, the State, and the 1977 International Women's Year Conference

[We have the following announcement of Gender, the State, and the 1977 International Women's Year Conference, an NEH Summer Seminar hosted by Drs. Nancy Beck Young and Leandra Zarnow.]

In November 1977, 2000 elected delegates and 20,000 observers descended upon Houston, Texas to participate in the first and only federally funded National Women's Conference to be held in U.S. history.  Hosted in a Sunbelt city on the rise, this conference was the domestic answer to the United Nations' International Women's Year conference and tribune held in Mexico City in 1975. The Houston Conference reflected the tensions of a nation at a crossroads with some seeing it as a promising expression of a more representative, rights-centered democracy and others viewing it as a liberal cooptation of taxpayers' dollars and a threat to the American family.  It is fitting at this conference's 40th Anniversary to take stock of its significance in a one-week National Endowment for the Humanities (NEH) Summer Seminar. 

We now invite applications from all college and university educators to "Gender, The State, and the 1977 International Women's Year Conference," to be held on the University of Houston-main campus June 12-18, 2017.  A stipend (taxable) will be provided to each selected Summer Scholar. 

This NEH Summer Seminar is designed to engage and equip educators with fresh scholarship, classroom resources, and pedagogy addressing U.S. politics, economics, and culture from the 1970s to the late twentieth century.  The National Women's Conference will be our entry point into broader thematic discussions addressing topics including the changing workplace and family, political realignment, identity politics, religious revival, Cold War tensions, social movement organizing, deindustrialization, and globalization.  In this fast-paced week, we will join in participant driven discussions, visit local archives and historic sites, and develop curriculum for a variety of classroom settings.  While the history of this period will be featured and debated, we welcome participants from a variety of disciplines and teaching backgrounds.  

The objectives of this one-week seminar include:
To rediscover the importance of the 1977 IWY National Women's Conference as a bellwether of shifting gender, sex, race, and class terrain during a pivotal Decade of Women.

To achieve an understanding of the 1970s as a "bridge" between midcentury liberalism and modern conservatism.

To juxtapose the mass feminist movement of the 1970s and its influence in party politics with the coinciding coalescence of grassroots conservatism and politicization of the imagined American family.

To consider the local, federal, and global implications of the National Women's Conference, thinking about its setting in a particular time and place.

To provide educators with pedagogical methods for teaching this subject through foundational texts, digital history tools, and oral histories.
For more about our NEH Summer Seminar and to apply please visit our website.

The deadline for applications is March 1, 2017. Notification letters for all applicants will be sent via email by March 31, 2017.

Drs. Nancy Beck Young & Leandra Zarnow, Seminar Co-Directors
The University of Houston, Houston, Texas
Department of History
Center for Public History
Carey C. Shuart Women's Archive and Research Collection

Schlegel on Hohfeld and the American Legal Academe

Trust me: this one is a gem.  John Henry Schlegel, University at Buffalo Law School, has posted Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor, which is forthcoming in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries, ed. Shyam Balganesh, Ted Sichelman and Henry Smith (Cambridge University Press, 2018):
Wesley N. Hohfeld (YLS)
Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence.
H/t: Legal Theory Blog

Tuesday, January 17, 2017

Workshop on Modern East Asian Law in Global Perspective

[We have the following Call for Papers.  We understand that the workshop is funded by the American Society for Legal History as well as the Weatherhead East Asian Institute and that the conference organizers are especially interested in receiving papers from advanced graduate students and junior scholars in the field.]

The Weatherhead East Asia Institution at Columbia University invites early-career scholars to
submit proposals for an international workshop on modern East Asian legal history, to be held
on April 15, 2017.   

Recent scholarship has reinvigorated the study of legal history, expanding the set of concerns
beyond their traditional conceptual, geographic and methodological boundaries. For students of
East Asia, the prospects this presents are exciting. What to do with the modifier “modern” in
modern law has always been a thorny issue in our field. But as we have come to see familiar
Western legal concepts as vitally conditioned by globalization, as opposed to distillates of a
universally valid modernity, there are new opportunities to appraise the nature and significance
of the transformation of East Asian legal systems in the nineteenth and twentieth centuries. With
this workshop, we will provide a venue for current graduate students, postdoctoral scholars and
new faculty to come together to discuss the theoretical and historiographic issues at stake.

The overarching goal is to consider how East Asia fits into an emerging global history of modern
law. Where is there common ground? Where are the possibilities to speak to scholars who
specialize in other regions the greatest? And where does a global perspective need to give way to
more circumscribed regional and national legal histories? These questions will be brought to bear
as participants engage with each other’s papers and research, guided by established historians
and legal scholars including Madeline Zelin, Andrew Sartori, Arnulf Becker Lorca, and Taisu
Zhang.

The day will consist of two panels of presentations, followed by a breakout session at the end.
Papers will be pre-circulated, and participants are expected to come to the workshop having read
all papers and ready with questions and comments. Presenters will give a 15-minute introduction
and synthesis of their work. Each panel will be followed by faculty comments and discussion.
Interested scholars should send a one-page proposal and a CV to globalealaw@gmail.com by
February 10, 2017. Acceptance notices will be issued by February 20. Selected presenters are
asked to send completed papers to the conference committee by March 19 for pre-circulation.
Limited funding is available for conference participants. Please indicate your need at the time of
application and include where you are traveling from and whether you require lodging.   

For all other inquiries, please contact globalealaw@gmail.com.

Conference Organizers: Colin Jones, Idriss Fofana and Tristan Brown

Balleisen's "Fraud"

Many legal historians will be interested in the newly published Fraud: An American History from Barnum to Madoff (Princeton University Press), by Edward J. Balleisen, associate professor of history and public policy and vice provost for Interdisciplinary Studies at Duke UniversityFraud
examines the evolution of marketplace deceptions and anti-fraud policies in the United States from the early nineteenth-century to the present.  The book emphasizes that the worst business frauds have consistently clustered in economic sectors undergoing rapid technological or organizational change.  It also charts the gradual move away from a legal culture predicated on caveat emptor to one that gave investors and consumers greater protections, as well as the emergence of modern regulatory agencies with anti-fraud missions, at both the subnational and national levels.  At the same time, Fraud traces the evolving regulatory functions of non-state actors, like the press and private regulators like the American Better Business Bureaus.  Throughout, the book pays close attention to regulatory governance in action – how agencies operate on a day to day basis, and how businesses responded to their efforts.  This approach reveals a recurring tendency of anti-fraud institutions to develop modes of denying allegedly deceptive firms access to the marketplace through such policies as mail fraud orders, declarations that advertising is not in the public interest, and orders to prohibit firms from access to online payment systems.  Such policies inevitably bump up against American legal culture, prompting the fashioning of procedural protections that impose requirements of fairness at the expense of speed and effectiveness.   Fraud concludes with an extended consideration of the resurgent problem of business fraud during the deregulatory decades since the mid-1970s, an episode that underscores the importance of regulatory structures that provide fraud containment. 
Publisher’s Weekly:

“Balleisen shows how anti-fraud regulations were perennially weakened by Americans’ grudging admiration for clever con-men, industry lobbying, the doctrine of caveat emptor (the notion that buyers are responsible for avoiding scams), and fears that cracking down too harshly on fraudulent promises might dampen the investor enthusiasm powering the economy. Balleisen’s lucid, engagingly written mix of institutional and legal history, behavioral economics, and entertaining anecdotes illuminates this land of bilk and money”

Kirkus Reviews:

“Balleisen casts a gimlet eye on the passing parade of hucksters and charlatans, peppering a narrative long on theory with juicy asides that build toward a comprehensive catalog of ‘Old Swindles in New Jargon….’ Ranging among the disciplines of history, economics, and psychology, Balleisen constructs a sturdy narrative of the many ways in which we have fallen prey to the swindler, and continue to do so, as well as of how American society and its institutions have tried to build protections against the con. But these protections eventually run up against accusations of violating ‘longstanding principles of due process,’ since the bigger the con, the more lawyers arrayed behind it.”

Me:

"Often vivid and always thoughtful, this is a very important and impressive work by a rigorous, venturesome historian at the top of his game. When so much public debate about regulation is polemical and hyperbolic, Edward Balleisen has made a major contribution by writing a book that thoroughly, comprehensively, even-handedly, and engagingly examines the history of American fraud and its regulation from the early nineteenth century to today."--Daniel R. Ernst, Georgetown University Law Center

Professor Balleisen discusses the book here.

Monday, January 16, 2017

Tushnet on "Important Shifts in Constitutional Doctrine"

I'm not the only person reassessing the constitutional history of the New Deal in light of the impending Trump presidency.  HLS's Mark Tushnet has a post on conservatives and civil liberties over at Balkinization.  I, for one, am prepared to let Barry Cushman say, "I told you so."

Kim on Small Debt Litigation in Colonial New York

 “In a Summary Way, with Expedition and at a Small Expence”: Justices of the Peace and Small Debt Litigation in Late Colonial New York, by Sung Yup Kim a visiting assistant professor of history at Pacific Lutheran University,is  available on-line now and in print late in the American Journal of Legal History (2017):
This essay examines the role of justices of the peace in upholding local credit networks among small farmers, tenants, artisans, and small traders in late colonial New York. Bolstered by a colonial statute enlarging their jurisdiction, New York’s justices handled a heavy volume of small debt cases, predominantly based on book debts or informal promissory notes. These were typically debt obligations arising from ongoing personal exchanges, in which the exchange of goods and services was the main objective, not the extension of credit itself. Partly in accordance with the traditionally acknowledged summary adjudication of individual justices and partly to adapt to the informal nature of debt cases that were brought to them, New York’s justices handled these cases in a distinctively informal but effective manner. Fully acknowledging and even taking advantage of the personal bases of such debt, justices’ courts offered a low cost, speedy alternative to higher courts such as inferior courts of common pleas. These findings suggest that well into the eve of the American Revolution, New York’s middling and lower sorts maintained vibrant local credit networks undergirded by the single justice’s court. At least for the case of New York, then, recent scholarship on early American law emphasizing the increased use of written credit instruments and the concomitant formalization of legal procedure, which, understandably, paid scant attention to the single justices’ courts, may have categorically discounted the lasting viability of localized legal and economic practices in early America.

Sunday, January 15, 2017

Sunday Book Review Roundup

Happy New Year, all.  In the NYRB, Annette Gordon-Reed reviews Robert Parkinson’s The Common Cause: Creating Race and Nation in the American Revolution, which “offers a provocative alternative to the conventional views that blacks’ perpetual alien status in the United States is simply a natural outgrowth of having been enslaved.” Instead, Gordon-Reed says, “Americans were deciding who was “in” and who was “out” as soon as they began to fight Great Britain.”

The Nation features a review of Steven Hahn’s A Nation Without Borders: The United States and Its World in an Age of Civil Wars, 1830-1910. This praiseful review tracks Hahn’s argument (“The nation-state has never been a stable political form that is distinct from empires. It has always emerged out of and then sustained itself on the imperial conquest of new territories”) and ends in a call for new political forms in a global era.  There’s also an essay on Harvey Cox, a Baptist minister, Harvard divinity professor, and “Christian left-wing intellectual to the core” that may be of interest to legal historians.

In the Wall St. Journal, legal historians can read Alex Beam’s review of A House Full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870, by Laurel Thatcher Ulrich, Willard Spiegelman’s review of Berlin for Jews by Leonard Barkan, and Adrian Goldsworthy’s review of The Triumph of Empire by Michael Kulikowski, a history of the Roman Empire (“Ancient Rome continues to fascinate us, with each new generation seeing echoes of its own hopes and fears in the rise and fall of an empire that seems simultaneously modern and alien”).

 The LA Times reviews David Silverman’s Thundersticks: Firearms and the Violent Transformation of Native America, which “uses military history and political economy to chip away at Jared Diamond’s “Guns, Germs, and Steel” narrative.” Instead, he argues that American Indians “cornered the market” on firearms in Early America, so much that the U.S. army resorted to “scorched earth techniques” in armed encounters (this phrase is used literally, at least to describe wars with the Seminoles, which involved “burning Seminole villages to the ground” and destroying cattle herds).

There are a few reviews of biographies and autobiographies that may be of interest. In the Guardian, William Davies reviews David Cannadine’s new book on Margaret Thatcher; Patricia Williams reviews Coretta Scott King’s autobiography in the Times and LA Times reviews Xu Hongci’s No Wall Too High, “one of the most compelling and moving memoirs to emerge from Communist China, which is now appearing in English for the first time.”

I couldn't find a legal history review in The Economist or on its website. I did, however, find this piece on the “The far right’s new fascination with the Middle Ages,” which has prompted many Medievalists to defend their period (with broadswords, and bludgeons, one imagines) to ensure that it is not "weaponised against people of colour and marginalised communities in our own contemporary world."

Saturday, January 14, 2017

Weekend Roundup

  • Via H-Law: The University of Glasgow School of Law invites applications from PhD students in Roman law/legal history for the post of Alan Rodger Postgraduate Visiting Researcher, to be held during the 2017/18 academic year. The selected candidate will spend a term in Glasgow and receive a £2,000 award for support. The deadline for applications is 10 February 2017. Full details are available here
  • Also via H-Law: a call for papers “that engage the relationship of Jewish law and social justice, broadly construed,” from the Jewish Law Association for a conference on Social Justice & Jewish Law at Yeshiva University, New York, NY, on March 27, 2017.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 13, 2017

Fraser on religion & education in Canadian legal history

Back in 2015, we missed the publication of Honorary Protestants: The Jewish School Question in Montreal, 1867-1997 by David Fraser, University of Nottingham. From the University of Toronto Press:
Honorary Protestants: The Jewish School Question in Montreal, 1867-1997When the Constitution Act of 1867 was enacted, section 93 guaranteed certain educational rights to Catholics and Protestants in Quebec, but not to any others. Over the course of the next century, the Jewish community in Montreal carved out an often tenuous arrangement for public schooling as “honorary Protestants,” based on complex negotiations with the Protestant and Catholic school boards, the provincial government, and individual municipalities. In the face of the constitution’s exclusionary language, all parties gave their compromise a legal form which was frankly unconstitutional, but unavoidable if Jewish children were to have access to public schools. Bargaining in the shadow of the law, they made their own constitution long before the formal constitutional amendment of 1997 finally put an end to the issue. 
In Honorary Protestants, David Fraser presents the first legal history of the Jewish school question in Montreal. Based on extensive archival research, it highlights the complex evolution of concepts of rights, citizenship, and identity, negotiated outside the strict legal boundaries of the constitution.
Praise for the book:

“The story of the ‘Jewish School Question’ has never before been told in such compelling detail, nor within the context of a learned discussion of ‘rights,’ ‘citizenship,’ and ‘identity.’ ‘Honorary Protestants’ constitutes an exceedingly important contribution to the history of Canadian education, the social politics of the Montreal Jewish community, and the relationships between the Jewish, Protestant, and Roman Catholic constituencies in the province of Quebec.” -Gerald Tulchinsky

‘Honorary Protestants’ presents an important corrective to the twentieth-century focus of much of the history of civil liberties in Quebec and Canada. As David Fraser demonstrates, fundamental rights and liberties were being debated already in the nineteenth century, long before conscription crises, the Red Scares, and Duplessis’s guerre sans merci of the 1930s and 1940s.” -Eric H. Reiter

You can read more about the book here.

In re Judith Miller: The Oral Argument Reenacted

[We have the following announcement of In re Judith Miller: National Security and the Reporter’s Privilege, sponsored by the D.C. Circuit Historical Society to be held Tuesday, February 14, 2017, 4:30 p.m.–6:00 p.m., in the Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.  Admission is free.  Reservations are not required.  A reception with light refreshments will follow the program.]

In 2003, following articles in the press identifying Valerie Plame as a CIA agent, the Department of Justice undertook an investigation into whether government employees had violated federal law by unauthorized disclosure of her identity.  A special counsel was named and a grand jury convened.  The Government issued a subpoena to New York Times reporter Judith Miller seeking documents and testimony related to conversations she had had with a government official concerning Valerie Plame. Ms. Miller refused to comply with the subpoena and was held in civil contempt. She appealed, arguing both that the First Amendment affords journalists a constitutional right to conceal their sources and that reporters enjoy an evidentiary privilege under the common law to conceal confidential sources. The Court of Appeals (with separate concurring opinions by Judges Sentelle, Henderson, and Tatel) rejected both arguments and affirmed the District Court’s orders compelling Ms. Miller’s testimony. Our program will include a reenactment of arguments presented to the Court of Appeals, focusing on the existence of a reporter’s privilege founded on federal common law. Professor David Pozen will set the stage. Laura Handman will argue for Ms. Miller, Amy Jeffress for the United States, and Judges Tatel and Sentelle will preside.

Following the reenactment, Stuart Taylor will moderate a discussion exploring the appropriate balance between free speech and common law protections of reporters’ sources, on the one hand, and the government’s need to know in aid of its law enforcement and national security responsibilities, on the other.  Panelists will include Professor Pozen, the advocates Ms. Handman and Ms. Jeffress, as well as James Cole, who, as Deputy Attorney General, was a key person in the 2014 revision of the Department of Justice’s news media policies.

Setting the Stage
David Pozen, Professor of Law, Columbia University

Reenactment
For appellant Judith Miller, Laura R. Handman, Davis Wright Tremain LLP
For appellee United States, Amy Jeffress, Arnold & Porter LLP
Sitting as judges: David S. Tatel, Judge, U.S. Court of Appeals for the D.C. Circuit; David B. Sentelle, Senior Judge, U.S. Court of Appeals for the D.C. Circuit

Panel Discussion
Moderator: Stuart S. Taylor, Jr., author, journalist, and lawyer
Panelists: James M. Cole, Sidney LLP; Laura R. Handman, Amy Jeffress, David Pozen

Thursday, January 12, 2017

Judging a Book By Its Cover

You’ve spent so much time writing your book, why wouldn’t you spend time on the cover design? Like the introduction, the cover design goes a long way in enticing readers to pick your book up in a bricks-and-mortar bookstore, or on a display shelf at the conference exhibit booth. Most importantly, it should be an image or a composite that conveys the themes of your book. For those who work with a piece of art, it should represent an artist or an emblematic theme that visually communicates what the book is about. (Like titles—subject of a later post).

Since the theme of my book is domestic slavery, I thought I would use a famous painting by a Peruvian artist (Francisco Laso) that depicts the “downstairs” conviviality of servant life in colonial Lima. Initially I chose this image because I loved it, and because it was one of the few paintings that did not incorporate domestic slaves as status symbols displaying the wealth of Spaniards. Neither did it use people of color as an exotic prop to highlight the normative ideals of European beauty. As critics of the painting have noted, the criollo boy plays a deferential role vis-a-vis the intense vitality of the two girls. The painting inverted—or at least complicated--a world in which Africans were slaves, Indians were servants, and Spaniards were owners.

Las tres razas, ca. 1859. MALI -- Francisco Laso de los Ríos


But years after I had secured the rights to use this image from the Museum of Art in Lima, I changed my mind. I ultimately ended up using another Laso painting. Ultimately, I chose this image because my book is about domestic slavery and servitude. The main characters are enslaved women and their owners. Because I deal principally with relationships that were not based on sexuality, I thought the image problematized our received wisdom of the power dynamics of these relationships.

Negrita Con Su Dueña, 1845. MALI -- Francisco Laso de los Ríos

For many scholars of domestic slavery and servitude, the mammy figure has been contested and at times vilified. She is ubiquitous in all slaveholding societies, yet she is surprisingly under-theorized--limited to a sexual object or located as the site of black maternalism within a hierarchical household structure. I maintain throughout Fractional Freedoms that these are theoretically insufficient frames to  think through what I call "thick" relationships of care-work. This image steers the onlooker into an intimate site of contested struggle and emotion--this was the work that I intended the image to perform.

Above all, a cover image should leave a lasting impression on the reader. Readers of this blog will remember the photo of the patriarch holding out his gleaming pocket-watch, taunting his greedy heirs on the cover of Dirk Hartog's Someday this will all be yours. And Harry Bridges with his laughing bride in the marriage clerk's office in Peggy Pascoe's What Comes Naturally. The cover is a great piece of real estate--don't squander the opportunity to build on it. Plus as previous blogger Karen Tani points out, it's a lot of fun!

The ABA, the Court-Packing Plan, and the Anti-Parliamentarian Tradition

In revising the materials for my legal history course, I reminded myself of an interesting example of what might be called the tactical comparative constitutionalism of the organized bar.  It was March 5, 1937, exactly one month after President Franklin D. Roosevelt announced his plan to “pack” the U.S. Supreme Court.  The chieftains of the American Bar Association, in a process studied by Stephen Botein, Rayman Solomon, and others, had already begun organizing the opposition.  To give a lofty tone to his appeal to the public to rally to the Court, President Frederick Stinchfield liked to invoke an eminent foreign observer of the American scene.  “‘To the people we come sooner or later,’ says James Bryce in The American Commonwealth," Stinchfield editorialized in the ABA Journal:   ‘It is upon their wisdom and self restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.’”

Stinchfield’s predecessor, William L. Ransom, evidently had less faith in the "broad good sense and attachment to the great principles of the Constitution" of the American people than Bryce did.  After FDR’s legislative triumphs in 1935, he certainly doubted Congress’s will to resist the president.  The ABA should “stop quoting from James Bryce or any other Englishman, in favor of the American tradition of the powers and functions of the Courts,” he counseled Stinchfield in a letter surviving in Newton Baker's papers at the Library of Congress.  “This counsel is not due to prejudice against things British, but to a realization that the President’s fight is veering toward an advocacy of the parliamentary system (executive and legislative powers merged and made supreme, with no judicial curb), and that the President will claim that liberty and individualism have not been destroyed in England.” 

The Court-packing plan died that summer, but the denunciation of “parliamentarism” survived, especially among senators of the president’s party seeking to justify their opposition to FDR's agenda.  For example, the majority report on a proposal to reform agencies' procedures explained, “The basic purpose of this administrative law bill is to stem and, if possible, to reverse the drift into parliamentarism which, if it should succeed in any substantial degree in this country, could but result in totalitarianism with complete destruction of the division of governmental power between the Federal and the State Governments and with the entire subordination of both the legislative and judicial branches of the Federal Government to the executive branch wherein are included the administrative agencies and tribunals of that Government.”

Although Congressional Republicans are big believers in American exceptionalism, I don’t expect them to invoke the anti-parliamentarian tradition until a constitutional crisis forces them to do so.  When the time comes, I hope it works.

California Supreme Court Historical Society Seeks Submissions

Over at the Faculty Lounge, Al Brophy reports that Molly Selvin, the editor of the California Supreme Court Historical Society Newsletter, seeks contributions for that semi-annual publication, which treats all of California’s legal history and not just the history of the California Supreme Court.  The most recent newsletter is here.

Center for the Study of Law & Society: Spring 2017 Speaker Series

The Center for the Study of Law and Society at the University of California, Berkeley has posted the lineup for its Spring 2017 Speaker Series. Some items of interest for our readers [UPDATED as of 1.13.17 to reflect revised dates]:
February 6: TOM LAQUEUR (UC Berkeley), "The Law of Dead Bodies and the Making of a Liberal Civil Order"
February 13: CATHERINE FISK (UC Irvine), "Writing for Hire: Unions, Hollywood, and Madison Avenue" (Harvard University Press, Oct. 2016)

April 3: ELIZABETH HINTON (Harvard University), “The Making of Mass Incarceration”
More information about the speaker series is available here

Wednesday, January 11, 2017

Shaw on refugees, religion, & empire

Oxford University Press has published Britannia’s Embrace: Modern Humanitarianism and the Imperial Origins of Refugee Relief by Caroline Shaw, Bates College. From the publisher:

Cover for 

Britannias Embrace






On the eve of the American Revolution, the refugee was, according to British tradition, a Protestant who sought shelter from continental persecution. By the turn of the twentieth century, however, British refuge would be celebrated internationally as being open to all persecuted foreigners. Britain had become a haven for fugitives as diverse as Karl Marx and Louis Napoleon, Simon Bolivar and Frederick Douglass. How and why did the refugee category expand? How, in a period when no law forbade foreigners entry to Britain, did the refugee emerge as a category for humanitarian and political action? Why did the plight of these particular foreigners become such a characteristically British concern? 
Current understandings about the origins of refuge have focused on the period after 1914. Britannia's Embrace offers the first historical analysis of the origins of this modern humanitarian norm in the long nineteenth century. At a time when Britons were reshaping their own political culture, this charitable endeavor became constitutive of what it meant to be liberal on the global stage. Like British anti-slavery, its sister movement, campaigning on behalf of foreign refugees seemed to give purpose to the growing empire and the resources of empire gave it greater strength. By the dawn of the twentieth century, British efforts on behalf of persecuted foreigners declined precipitously, but its legacies in law and in modern humanitarian politics would be long-lasting. 
In telling this story, Britannia's Embrace puts refugee relief front and center in histories of human rights and international law and of studies of Britain in the world. In so doing, it describes the dynamic relationship between law, resources, and moral storytelling that remains critical to humanitarianism today.
You can read the author’s thought-provoking piece on the OUPblog. "The fate of foreign refugees, past and present" considers today's global refugee crisis in light of themes explored in Britannia's Embrace.

More information about the book is available here.