Saturday, August 18, 2018

Weekend Roundup

  • Georgetown Law’s press release on the research on emoluments by John Mikhail (and RA  Genevieve Bentz).
  • We hear that the program for the annual meeting of the ASLH in Houston this November will be out shortly, but you can register now here.
  • This week marked the 71st anniversary of Indian and Pakistani independence, and of the violence of the 1947 Partition. Some classic titles (including fiction) are in a stack here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 17, 2018

Jackson Center Seeks Executive Director

[We’re grateful to John Q. Barrett, St. John’s University, and his Jackson List for the following announcement.]

The Robert H. Jackson Center, located in Jamestown, New York, is searching for its next leader.  The position description is below.  Please consider applying if you are a strong prospect, and please share this in your networks with others who should be interested in this opportunity.  Applicants should contact the Jackson Center by email, at

[The position summary is also on Professor Barrett's website.]

University of Hong Kong Seeks Legal Historian

[We have the following announcement.]

The University of Hong Kong is currently conducting a search for a tenure-track position in Law & History. PhD required by start-date, JD would be advantage. Geographic field and time-frame open. The appointment would be in the history department, with the opportunity to develop courses in the law school as well. The university provides ample support for research and attractive teaching loads.  Full details are available here.  Applications are due by September 21st.

Papp Kamali on a Papal Interdict and Trial by Jury

Elizabeth Papp Kamali, Harvard Law School, has posted Trial by Ordeal by Jury in Medieval England, or Saints and Sinners in Literature and Law, which appears in Kate Gilbert and Stephen D. White, eds., Emotion, Violence, Vengeance and Law in the Middle Ages: Essays in Honour of William Ian Miller (Leiden: Brill, 2018):
Using a miracle tale as a focal point, this paper illuminates the political and cultural context of York at the turn of the twelfth to thirteenth century in order to make sense of England’s rapid transition from trial by ordeal to trial by jury after 1215. More specifically, the paper highlights the possible impact of the period of papal interdict (c. 1208 – 1214), imposed by Pope Innocent III in response to King John’s intransigence over the appointment of a new archbishop of Canterbury, during this transitional period in criminal procedure. It argues that the interdict, with its suspension of liturgies, might have forced experimentation with alternative means of reaching verdicts in felony cases. The paper also suggests that juries might have been involved in the issuance of ordeal verdicts in the late ordeal period in England, in which case the shift from trial by ordeal to trial by jury may be less a moment of rupture than a transition from one form of trial using juries to another, albeit a trial form more starkly desacralized after 1215. It is the author’s hope that the paper will serve as a starting point for further research, not a decisive answer to the questions it raises, including whether England’s rapid adoption of final jury verdicts may owe something to the tussle between King John and a particularly imperial and imperious pope.

A conversation between Bishara and Seng

In April, Comparative Studies in Society and History hosted an online exchange between two of its authors writing about law on opposite sides of the Indian Ocean. Here's the opening set-up for a conversation between Fahad Bishara, University of Virginia and Guo-Quan Seng, Cornell University:


FAHAD AHMAD BISHARA, “‘No country but the ocean”: Reading International Law from the Deck of an Indian Ocean Dhow, ca. 1900”

GUO-QUAN SENG, “The Gender Politics of Confucian Family Law: Contracts, Credit, and Creole Chinese Bilateral Kinship in Dutch Colonial Java (1850s–1900)”

In “No country but the ocean”: Reading International Law from the Deck of an Indian Ocean Dhow, ca. 1900,” Fahad Ahmad Bishara considers the legal imaginaries of Indian Ocean mariners sailing out of the port of Sur, on the Arabian Peninsula. Maritime legal culture entailed a domestication and vernacularization of international law, not least in the ways it was materially manifested in flags and, for these captains, efficacious French documents (titres). These objects-at-sea extended legal regimes of the land, but also refracted and transformed them to captains’ own idiosyncratic purposes. Flags and documents were used to foment exchanges far beyond what they actually secured or promised; for example, titres were freely transferred from one ship, and sailor, to another. Bishara recounts a microhistory of a 1905 court case of Muscat-based dhows suspected of slave-trading, arbitrated at the Hague. The essay reveals the affordances and limits presented to seafarers sailing under a French flag and bearing French papers, though on a mostly British sea. At the same time, it highlights the processes by which dhow captains from Sur appropriated these imperial technologies and grounded them in their own world, framing their encounter with the British navy as the latest in a long string of imperial entanglements at sea, and anchoring the French titres in a regional regime of safe-conduct passes.

Attending to a different form of legal anomaly, Guo-Quan Seng’s essay, “The Gender Politics of Confucian Family Law: Contracts, Credit, and Creole Chinese Bilateral Kinship in Dutch Colonial Java (1850s–1900)” documents the extraordinary economic power enjoyed by creole Chinese women in nineteenth-century Java. These women possessed inheritance rights and directed their household economies, often retaining substantial wealth independent from husbands’ debts or other family liabilities. Beginning in the 1860s, though, Dutch officials began to administer Chinese family law in the colonial courts, and they did so relying on abstract ideals of Confucianist ethics grounded in Sinological studies and formalist textual interpretations. Confucianist legal doctrines of the male as natural head of the household began to inform Dutch legal norms. As a result, by the 1880s women’s autonomous wealth was made vulnerable to husbands’ debt and obligations. Seng shows that Dutch Confucianism, installed in the name of Chinese “tradition,” deprived creole Chinese women of legal rights that they had long enjoyed in actual tradition and practice.

Follow the rest of the conversation here.

Thursday, August 16, 2018

It's Alive! Iuliano and Whittington on the Nondelegation Doctrine

Jason Iuliano, Olin-Searle Fellow in Law at the University of Pennsylvania Law School, and Keith E. Whittington, William Nelson Cromwell Professor of Politics at Princeton University, Department of Political Science, have posted The Nondelegation Doctrine: Alive and Well, which appeared in volume 93 of the Notre Dame Law Review (2017):
The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity. In this Article, we argue that the conventional wisdom is mistaken in an important respect. Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level. In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine. Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well.
If this paper treats the alleged “death” of the nondelegation doctrine, this earlier article reexamines the doctrine’s “life.

Birla on philanthropy and profit in modern India

Earlier this year, Ritu Birla, University of Toronto published "C=f(P): The trust, 'general public utility,' and charity as a function of profit in India" in Modern Asian Studies (January 2018), 132-62. Here is the abstract: 
With an interest in historicizing contemporary philanthropic formations such as corporate social responsibility, this article outlines the modern Indian governmental coding of charity as a function of profit. To do so, it charts a trajectory of legal-fiscal policy on charitable tax exemption in India, especially since the 1940s. Informed by the study of vernacular capitalism, research on economization and on epistemologies of calculation, the analysis maps juridical trajectories on the idea of charity, its relationship with trade, and, more specifically, profit-making. It demonstrates how the legal mechanism of the public trust, which serves in the late nineteenth century to institutionalize a strict distinction and separation between charity and profit-making, later reconfigures and connects them by buttressing the main legal criterion for charity in India, that is, ‘general public utility’. This legal story is deployed to draw attention to philanthropy more broadly as a key terrain for research on processes of economization and neoliberal governing. At the same time, the argument also works against the grain of palimpsests in contemporary public discourse which stage a continuous and direct line from pre-colonial vernacular practices to Indian philanthropy today.
Further information is available here

Wednesday, August 15, 2018

Bowman on British Impeachments

Frank O. Bowman III, University of Missouri School of Law, has posted British Impeachments (1376-1787) & the Present American Constitutional Crisis:
Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

New issue of Legal History

The current issue of the revived Australian journal, Legal History, is out. Here are the articles with abstracts for issue 17, no.2:

  • Ann Hunter, "The status of Aboriginal customary law in early colonial Western Australia - A parallel Aboriginal Jurisdiction?": This article examines the debates regarding legal pluralism and the status of Aboriginal law in Western Australia when John Hutt was governor from 1839 to 1846 and had a specific objective to develop a model of colonial governance over Aboriginal people. As in New South Wales, it was not simply a matter of expediency, but moral and legal obligations, which drove a few officials and lawyers to criticise the extent of the application of British sovereignty and law. While there has been some studies of the case of R v Wewar, there has not been an investigation into the extent of the legal debates arising after this case. The question of Aboriginal jurisdiction and legal autonomy was largely debated where European lives and property were not regarded as directly affected. Lawyers at the time realised that the assertion of British Crown sovereignty over Aboriginal people was uncertain and evolving. In seeking guidance, they looked more to theory and practice in other parts of the British Empire where more pluralistic legal systems existed, such as in India, North America and the early United States. They contrasted the conduct of the governments and courts there in relation to Indigenous peoples where a degree of indigenous legal autonomy was accommodated, with that in Australian colonies including WA.
  • Joshua Krook, "A Brief History of Legal Education: A Battle Between Law as a Science and Law as a Liberal Art": The history of legal education is one of transformation. From the Inns of Court in London to the modern university, from informal ad hoc teaching to formalised accreditation, from law schools experimenting in techniques and methods to the dominance of a single method of instruction.The history is a battle of ideas. Ideas over what the law is, how it should be taught and the kinds of student a law school should produce. Frequently, law schools have been the battleground of fierce intellectual rivalries, with rival schools of thought battling for supremacy and control over the future of the curriculum. The major battle has been between those who see law as a liberal art and those who see law as a science. Over time, the latter group has largely prevailed, creating the modern legal education system that we know today, one that is dominated by a view of law as a technical skill, taught as a vocation or trade.
  • Joella Marron, "Divine Violence and the Outlaw: The Works, Deeds and Words of Ned Kelly":  Inherent tensions between emerging or post-conflict states and the outlaw are not new. The creation of ‘outlaws’ can help a state define itself by reference to the ‘other’.  A dilemma facing individuals and movements resisting State oppression and the violence of the law, is how and when to work within and outside the law and the (il)legitimacy of unsanctioned counter-violence.  This paper considers an example from Australian colonial history, the case of the legendary outlaw Ned Kelly, which occurred at a critical juncture in the formation of state in Australia. Through a critical legal analysis of Ned Kelly’s works, deeds and words, this paper aims to generate insight into the dynamics between law, violence, power and justice and the nexus between the outlaw and the state-building project in the Australian context. By exploring the tensions between violence internal and external to the law and drawing on the Benjaminian concept of ‘divine’ violence as existing outside and beyond the law, this paper notes the potentially transformative effects of divine violence and its continued relevance to contemporary struggles between states and the oppressed.
Further information is available here.

Tuesday, August 14, 2018

Campbell on the Origins of 1st Amendment Federalism

Jud Campbell, University of Richmond School of Law, has posted The Invention of First Amendment Federalism, which is forthcoming in the Texas Law Review:
When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding-Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, and never analyzed as a central feature of the opposition to the Sedition Act, the problem of partisan jury selection drove the shift in Republican thought. As originally understood, speech and press freedoms put juries primarily in charge of administering governmental limitations of expression. Following the development of political parties, however, Republicans perceived that the guarantee of a jury trial was nearly meaningless when federal jurors were hand selected by partisan federal marshals. In response, Republicans promoted a new reading of the First Amendment. Deeply suspicious of abuse by federal judges and juries, Republicans insisted that the First Amendment deprived the federal government of any authority to regulate speech or the press even though analogous speech and press clauses at the state level left considerable room for states to regulate harmful expression.

This episode reveals a latent tension in eighteenth-century constitutionalism. Some threads of Founding-Era thought embraced the notion of a document with fixed meaning, but other features encouraged constitutional evolution as conditions changed. Rather than seeking a principled resolution of this tension, however, Republicans developed entirely new arguments and then cast them in historical terms. The invention of First Amendment federalism also raises the possibility of a different path for modern speech doctrine, guided less by a particular theory of why speech is special and more by practical concerns about political entrenchment and politically biased enforcement.

Dubber & Tomlins's "Oxford Handbook of Legal History"

It’s available for pre-order now and shipping in on September 9: The Oxford Handbook of Legal History, edited by Markus D. Dubber and Christopher Tomlins.
Some of the most exciting and innovative legal scholarship has been driven by historical curiosity. Legal history today comes in a fascinating array of shapes and sizes, from microhistory to global intellectual history. Legal history has expanded beyond traditional parochial boundaries to become increasingly international and comparative in scope and orientation.

Drawing on scholarship from around the world, and representing a variety of methodological approaches, areas of expertise, and research agendas, this timely compendium takes stock of legal history and methodology and reflects on the various modes of the historical analysis of law, past, present, and future. Part I explores the relationship between legal history and other disciplinary perspectives including economic, philosophical, comparative, literary, and rhetorical analysis of law. Part II considers various approaches to legal history, including legal history as doctrinal, intellectual, or social history. Part III focuses on the interrelation between legal history and jurisprudence by investigating the role and conception of historical inquiry in various models, schools, and movements of legal thought. Part IV traces the place and pursuit of historical analysis in various legal systems and traditions across time, cultures, and space. Finally, Part V narrows the Handbook's focus to explore several examples of legal history in action, including its use in various legal doctrinal contexts.
TOC after the jump.

Monday, August 13, 2018

Beckert & Desan's "American Capitalism: New Histories"

American Capitalism: New Histories, edited by Sven Beckert and Christine Desan, Harvard University, is out from the Columbia University Press:
The United States has long epitomized capitalism. From its enterprising shopkeepers, wildcat banks, violent slave plantations, huge industrial working class, and raucous commodities trade to its world-spanning multinationals, its massive factories, and the centripetal power of New York in the world of finance, America has come to symbolize capitalism for two centuries and more. But an understanding of the history of American capitalism is as elusive as it is urgent. What does it mean to make capitalism a subject of historical inquiry? What is its potential across multiple disciplines, alongside different methodologies, and in a range of geographic and chronological settings? And how does a focus on capitalism change our understanding of American history?

American Capitalism presents a sampling of cutting-edge research from prominent scholars. These broad-minded and rigorous essays venture new angles on finance, debt, and credit; women’s rights; slavery and political economy; the racialization of capitalism; labor beyond industrial wage workers; and the production of knowledge, including the idea of the economy, among other topics. Together, the essays suggest emerging themes in the field: a fascination with capitalism as it is made by political authority, how it is claimed and contested by participants, how it spreads across the globe, and how it can be reconceptualized without being universalized. A major statement for a wide-open field, this book demonstrates the breadth and scope of the work that the history of capitalism can provoke.
Here are some endorsements:
     Sven Beckert and Christine Desan are leaders in the burgeoning history of capitalism field, and they have put together a volume of outstanding scholars whose essays, in their chronological reach and subject matter, show this new literature at its best. A very fine and promising collection.
    Steven Hahn, New York University

    This stunning volume not only captures the most vibrant, challenging work in the history of capitalism, but also distills the central themes and defining contributions of the field. The essays speak to all historians, not just those working in the history of capitalism. A must read.
    Laura F. Edwards, Duke University

    American Capitalism represents the coming of age of a field of historical research. Rarely, in any field, has one volume featured the work of so many talented and accomplished historians. Each chapter breaks fresh ground and proposes new lines of inquiry. The editors have assembled a landmark and agenda-setting book that no student of economic life in the United States can afford to ignore.
    Jonathan Levy, University of Chicago

    From the creditor constitution to the market for slave clothing to early American mercantilist thinking, this deftly curated book samples some of the best work that the history of capitalism literature has to offer. Readers interested in new and provocative explorations of the politics, law, and culture enmeshed in American economic institutions need look no further.
    Suresh Naidu, Columbia University

    Few historical subfields are more important and timely than the critical history of capitalism. In this volume, Sven Beckert and Christine Desan have assembled cutting-edge work on topics as diverse as slavery, credit, insurance and risk, financial crises, race, gender, agriculture, and law and regulation. These essays combine chronological breadth, analytical depth, and geographic scope, linking the micro and macro, the local and the global. Essential reading.
    Thomas J. Sugrue, New York University
TOC after the jump.

Davis Center fellowships

[We have the following announcement. Deadline: Dec.1, 2018.]

Image result for davis center princetonDuring the 2019-20 academic year, the Shelby Cullom Davis Center for Historical Studies at Princeton University will focus on the topic of “Law & Legalities.” This seminar will bring together visiting scholars working on law in societies around the world and throughout human history, on topics including (but not restricted to) state administration, gender and sexuality, race, religion, property, science, environment, technology, war, migration, commerce, medicine, disability, incarceration, and human rights. How have legal, illegal, quasilegal, and extra-legal forms of social order interacted in different periods and places? We will consider the historical possibilities and predicaments that have emerged within legal and juridical systems (both ‘hard’ and ‘soft’), as well as the conflicts that have arisen from the overlapping jurisdictions of custom, community, religion, nation-state, empire, and international bodies.

Fellowships are awarded to employed scholars who are expected to return to their position. Verification of employment and salary will be requested prior to approval by the Dean of the Faculty. PhD required.

The application for a visiting position is available here.

The deadline for receipt of applications and letters of recommendation for fellowships is December 1, 2018, 11:59 p.m. EST. Applicants must apply online and submit a CV, cover letter, research proposal, abstract of proposal, and contact information for three references.
Princeton University is an Equal Opportunity/Affirmative Action employer and all qualified applicants will receive consideration for employment without regard to age, race, color, religion, sex, sexual orientation, gender identity or expression, national origin, disability status, protected veteran status, or any other characteristic protected by law.

Further information is available here.

Angela N. H. Creager

Director, 2016–2020

Sunday, August 12, 2018

Blending Business History and Legal History

Thank you to Karen, Dan, and Mitra for inviting me to participate in the Legal History Blog.

To get started, I want to introduce what I’ve been working on for the better part of a decade, my recently published book, American Fair Trade: Proprietary Capitalism, Corporatism, and the "New Competition," 1890-1940 (CUP, 2018). I began this research project in graduate school at the University of Virginia and, in another post, I plan to discuss how I came to this topic. I’ll also offer some advice to graduate students looking for dissertation topics. Today, however, I’d like to tell you a bit about the book and then reflect on writing in two disciplines – legal history and business history. Interdisciplinary work posed some methodological challenges but also opened opportunities for analytical reinterpretation of historical events. For historians of regulation, it seems critical to incorporate both the social scientist’s approach to business history and the institutionalist perspective present in legal historian’s methods.

American Fair Trade argues that trade associations of independent proprietors acted as regulatory intermediaries between individual firms and government agencies in the fifty years before World War II. In doing so they facilitated the growth of the administrative state and altered the legal meaning of “fair competition.” Rather than viewing the history of American capitalism as the unassailable ascent of large scale corporations and free competition, American Fair Trade shows that trade associations lobbied and litigated to reshape antitrust law to their benefit. Cooperation among businesspeople and state regulators legitimized codes of fair competition that prohibited certain business practices, such as sales below cost or secret rebates, and standardized production and retailing specifications. New Deal partnerships in planning borrowed from those efforts to manage competitive markets, but ultimately, distended and discredited the fair trade model by incorporating large scale businesses and mandating economy-wide trade rules that sharply reduced price competition. State-level fair trade laws persisted through the 1950s, but their popularity waned with consumers and jurists thereafter.

To some business historians, the supposed failure of the fair trade movement may appear inevitable. One might reasonably believe that the early twentieth century’s independent proprietors – such as specialty producers of foodstuffs, coffees, and make-up as well as independent retail druggists and grocers – never stood a chance against the superior efficiencies of mass production and retailing with its improved economies of scale and scope. Those technological imperatives, that narrative goes, acted as a driving force behind historical change, at least according to a simple caricature of the Chandlerian paradigm. If viewed from that lens, it is easier to dismiss the proponents of fair trade contracts and the fair trade laws that enforced them as rent-seeking, backwards, and merely nostalgic for a bygone era. (For more on Alfred Chandler and the Chandlerian paradigm, see Richard John's historiography here, which appeared in the Business History Review.)

Of course I would not allege that the Chandlerian framework would require such a simple critique, nor would I assert that all business historians subscribe to the Chandlerian paradigm even in its more sophisticated form of historical analysis. Historians like Philip Scranton have pioneered alternative narratives that emphasize the continued importance of independent proprietors, entrepreneurs, and craftspeople. The point here is that there is a technological determinism that we all must confront, regardless of the history we’re writing.

Here’s where I think that new opportunities emerge for historians of regulation to overlay the interpretative lens of legal history onto business history’s deep studies of firm-level challenges and changes. Legal historians offer a skill set adept in analyzing how the law shapes markets through procedures, rules, and enforcement. They also demonstrate how legal change happens over time by investigating key litigants, lawmakers, and mezzo-level bureaucrats who propel institutional change forward. Likewise, business historians offer key analytical insights on how private firms govern markets through inter-firm contracts, trade association rules, and industry norms. Those firms and associations often inform the law-making process – we can refer to it as capture or coordination of the regulatory process; examples abound of both. But, only by taking both fields’ analytical frameworks and emphasis on particular actors (policymakers and regulators, on the one hand, and firms, on the other) can historians of regulation produce truly robust explanations of institutional and economic change. (Ed Balleisen has written extensively on the history of regulation, blending business and legal history. Several other historians have as well, such as Lou Galambos, Naomi Lamoreaux, Brian Balogh, Victoria Saker Woeste, to name just a few.)

American Fair Trade blends legal and business history to construct an institutional analysis of U.S. competition policy between 1890 and 1940. It focuses not on the large scale firms and the trust-busting cases that have garnered so much attention, but rather it emphasizes the role that independent proprietors played in shaping private markets and influencing public law. It demonstrates the surprising flexibility of early twentieth century antitrust policy and the unexpected partnerships between business groups and federal regulators. The institutional story displaces the myth of free market competition and, I hope, leaves us with a more thorough understanding of how law and society reflected time- and place-specific rules governing fair competition, which – at least for some time – ordered markets.

Saturday, August 11, 2018

Weekend Roundup

  • Greg Kaster, Gustavus Adolphus University, reflects on his participation in the NEH Summer Institute on Slavery and the Constitution, directed by Paul Benson and Paul Finkelman.
  •  Ronald Collins & David Hudson have a special issue of First Amendment News devoted to 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880-2018.  The essay draws upon studies by Julie Silverbrook, Emma Shainwald, Marlene Trestman, and Clare Cushman.  And don't forget Mary L. Clark’s "Women as Supreme Court Advocates, 1879-1979,” Journal of Supreme Court History (2005).
  • From the Washington Post's "Made by History" Section: Torrie Hester (Saint Louis University), Mary E. Mendoza (Penn State University), Deirdre Moloney (author of National Insecurities) and Mae Ngai (Columbia University) comment on a new proposal from the Trump Administration that would essentially punish legal immigrants for being poor; Julian Maxwell Hayter (University of Richmond) on the controversies over Confederate monuments and why "our history educations must be better"; Rachel Louise Moran (University of Texas) discusses why American policy is leaving millions hungry; and much more.  
  • Past Punditry is streaming a new podcast, A12. Created by UVA Miller Center historian Nicole Hemmer, the podcast is about what happened last August 12 in Charlottesville, Virginia, and the history behind it. 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 10, 2018

Peer on the Federal Reserve Act and the Lender of Last Resort

Nadav Orian Peer, Tulane University Law School, has posted Negotiating the Lender-of-Last-Resort: The 1913 Fed Act as a Debate Over Credit Distribution, which is forthcoming in the NYU Journal of Law & Business (2019):
“Lending of last resort” is one of the key powers of central banks. As a lender-of-last-resort, the Federal Reserve famously supports commercial banks facing distressed liquidity conditions, thereby mitigating destabilizing bank runs. Less famously, lender-of-last-resort powers also influence the distribution of credit among different groups in society and therefore have high stakes for economic inequality. The Fed’s role as a lender-of-last-resort witnessed an unprecedented expansion during the 2007-9 Crisis when the Fed invoked emergency powers to lend to a new set of borrowers known as “shadow banks”. The decision proved controversial and spurred legislative reform narrowing the Fed’s authority as well as an ongoing scholarly debate. Participants in this debate, the article argues, limited their focus to financial stability considerations, thereby neglecting those powers’ considerable distributive implications. The article contributes to the current literature by demonstrating the distributive stakes of lender-of-last-resort powers through a concrete historical example: the legislative debate around the 1913 Federal Reserve Act that established the Fed. During that time, three different groups debated the legal definition of “eligible collateral” that the Fed could accept from borrowers to secure emergency loans. The first group was corporate financiers, who were interested in supporting capital markets. The second group was the Democratic framers of the Act, who tried to divert credit away from corporate securities and into small businesses. The third group was farmers that needed credit for developing the agrarian periphery. I argue that each of these groups tried to shape the definition of eligible collateral in ways that would promote that group’s unique credit needs and reduce its borrowing costs. For us today, this history is an invitation to reconsider the distributive implications of the current lender-of-last-resort powers and revise them accordingly.

Chacon and Jensen on Constitutional Referenda in Antebellum US

Mario Chacon and Jeff l. Jensen, New York University Abu Dhabi, have posted Direct Democracy, Constitutional Reform, and Political Inequality in Post-Colonial America:
The ratification of constitutional changes via referendum is an important mechanism for constraining the influence of elites, particularly when representative institutions are biased. While this constitutional mechanism is commonly employed, its use is far from universal. We investigate the determinants of mandatory constitutional referendums by examining the divergence between Northern and Southern U.S. states in the early 19th century. We first explore why states in both regions adopted constitutional conventions as the mechanism for making revisions to fundamental law, but why only Northern states adopted the additional requirement of ratifying via referendum. We argue that due to distortions in state-level representation, Southern elites adopted a norm of discretionary referendums as a mechanism for protecting slave interests. We support our argument with both qualitative and quantitative evidence, including an analysis of votes from various Southern conventions in 1861 on whether to condition secession from the Union on receiving popular ratification.

Woolhandler and Collins on Federal Supremacy and State Jurisdictional Duties

Ann Woolhandler and Michael G. Collins, University of Virginia School of Law, have posted Federal Supremacy and State Jurisdictional Duties:
Federal Courts scholarship often focuses on access to federal courts for the decision of federal claims. At the same time, many Federal Courts scholars insist that state courts must hear affirmative federal causes of action, even when the lower federal courts are open to the same claims—the very federal courts regarded by such scholars as superior to state courts. This article takes issue with suggestions that the state courts have broad duties to entertain affirmative federal claims, whether statutory or constitutional. There is little early support for requiring state courts to entertain affirmative federal statutory and constitutional claims, and considerable evidence against it. In the twentieth century, however, the Court began to compel state courts to take jurisdiction of certain federal statutory actions in a line of cases associated with Testa v. Katt. Such compulsion, however, was not justified by the Supremacy Clause or related arguments. The Court also occasionally required state courts to provide certain constitutionally necessary affirmative remedies, in a different line of cases associated with General Oil v. Crain. The constitutionally compelled remedies strand was based on a requirement that the states supply adequate remedies for certain federal constitutional violations, rather than a Supremacy-based command that the states provide the same causes of action that the federal courts provide, as under Testa. The effect of more recent Supreme Court decisions such as Haywood v. Drown and scholarly proposals following the Court’s 2016 decision in Montgomery v. Louisiana threaten to submerge the Crain line of cases into the Testa line, possibly requiring greater state court conformity with federal courts as to causes of action for raising constitutional claims. Such uniformity, however, threatens to diminish the role of the states in fashioning different solutions to problems of governmental illegality. State variation may be all the more important in light of frequently-voiced dissatisfaction with the Court’s federal habeas corpus doctrine and constitutional tort doctrine under 42 U.S.C. § 1983. State court duties thus will not necessarily enhance the enforcement of federal constitutional law, and might actually undermine it.

Schorr on Theories of Social Evolution and the Commons

David Schorr, Tel Aviv University Buchmann Faculty of Law, has posted Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory, which appears in Theoretical Inquiries in Law 19 (2018): 507-531:
This article argues that modern commons theory has been substantially shaped by early modern ways of thinking about the evolution of civilizations. In particular, it has hewed closely to models that gelled in the Enlightenment-era works known as “stadial theory,” by authors such as Lord Kames and Adam Smith, and passed down to the twentieth century, to theorists including Garrett Hardin, Harold Demsetz, and Elinor Ostrom. It argues that stadial thinking reached modern commons theorists largely through the disciplines of anthropology and human ecology, paying particular attention to the debate among anthropologists over aboriginal property rights, colonial and international development discourse, and neo-Malthusian conservationism. The effects of stadial theories’ influence include a belief among many that private property represents a more advanced stage of civilization than does the commons; and among others a Romantic yearning to return to an Eden of primitive and community-based commons. Thus do deep cultural attitudes, rooted in the speculative thinking of an earlier age, color today's theories — positive and normative — of the commons.

Schachar and friends on citizenship

Cover for 

The Oxford Handbook of Citizenship

Ayelet Schachar (Max Planck Institute for the Study of Religious and Ethnic Diversity & University of Toronto), Rainer Baubock (European University Institute), Irene Bloemraad (University of California, Berkeley), and Maarten Vink (Maastricht University) have co-edited The Oxford Handbook of Citizenship. The collection came out with Oxford University Press in 2017 and includes plenty of legal history. From the publisher: 
Contrary to predictions that it would become increasingly redundant in a globalizing world, citizenship is back with a vengeance. The Oxford Handbook of Citizenship brings together leading experts in law, philosophy, political science, economics, sociology, and geography to provide a multidisciplinary, comparative discussion of different dimensions of citizenship: as legal status and political membership; as rights and obligations; as identity and belonging; as civic virtues and practices of engagement; and as a discourse of political and social equality or responsibility for a common good. 
The contributors engage with some of the oldest normative and substantive quandaries in the literature, dilemmas that have renewed salience in today's political climate. As well as setting an agenda for future theoretical and empirical explorations, this Handbook explores the state of citizenship today in an accessible and engaging manner that will appeal to a wide academic and non-academic audience. Chapters highlight variations in citizenship regimes practiced in different countries, from immigrant states to 'non-western' contexts, from settler societies to newly independent states, attentive to both migrants and those who never cross an international border. Topics include the 'selling' of citizenship, multilevel citizenship, in-between statuses, citizenship laws, post-colonial citizenship, the impact of technological change on citizenship, and other cutting-edge issues.  
This Handbook is the major reference work for those engaged with citizenship from a legal, political, and cultural perspective. Written by the most knowledgeable senior and emerging scholars in their fields, this comprehensive volume offers state-of-the-art analyses of the main challenges and prospects of citizenship in today's world of increased migration and globalization. Special emphasis is put on the question of whether inclusive and egalitarian citizenship can provide political legitimacy in a turbulent world of exploding social inequality and resurgent populism.
 Praise for the volume: 

"The definitive source on a critical concept in political and social life. Innovative in its conception and authoritative in its execution." - J.H.H Weiler

"This is an invaluable Handbook. No other single volume achieves the theoretical acuity, historical depth, legal grounding, and sociological analysis of citizenship that this book manages to achieve. It is clear, wide ranging, and admirably un-parochial in the range of its references. By focusing on a wide range of citizenship claims, from those of dominant groups seeking to exclude to marginalized groups struggling for legal recognition, the Handbook enlarges our sense of the moral stakes and political struggles at the heart of citizenship." - Pratap Bhanu Mehta

Contents after the jump: