Friday, February 22, 2019

Archive Fever, part 2: Make Your Students Do It!



As I mentioned in my post yesterday, I teach a research seminar on African legal history to undergraduate students.  We read a range of secondary sources, but the bulk of the course involves working through a set of court cases from a customary civil court in early twentieth-century South Africa (these are the records of the Tamacha Special Magistrate’s court, for the three people out there who would know what that is).  I’m sharing the basic structure of the course here because I’ve enjoyed teaching it immensely, and perhaps it will spark inspiration for other—and, selfishly, because perhaps you will send me suggestions for things to do with these records that I haven’t thought of yet!

I designed this court because I wanted students to have the experience of doing primary-source research in African history, one that took them beyond carefully selected sources available in classic collections such as From Protest to Challenge (a set of documents from the South African liberation struggle).  I wanted them to get a sense of what historians actually do.  I don’t think my students should become historians themselves, but I do think that knowing how the sausage is made helps them to read, understand, and evaluate historical research—and, by extension, to engage critically with the way that writers in many genres use evidence to support their claims.  To me, that’s the point of a liberal arts education.

To really achieve that goal, I wanted students to work with sources in a relatively unprocessed form.   By the same token, I knew that I couldn’t just throw them in at the deep end—I needed to help them work through these sources, step by step.  This is particularly important because, although most of the students in the class are history or Africana Studies majors, they don’t necessarily have any background in African history.  I decided it would make sense to work with a set of sources I already knew from my own research, so that I would understand them well enough to guide my students in their research.  On my next research trip to Cape Town, I returned to the records of one of the civil courts I’d looked at for Colonizing Consent, and took pictures of the complete records for the period from 1902-1912.  

The seminar meets twice weekly, and we roughly alternate between reading secondary source material and working with the court records.  I have students read some of the classics on customary law, as well as some background material on the Eastern Cape and turn of the century South Africa.  For the primary source assignments, each student gets one volume of court records, containing roughly 300 cases.  Assignments are (in brief summary):

1. Transcribe five cases in full, and share with class [cases are 1-2 handwritten pages]
2. Take notes on another ten cases, and share with class
3. Informal writing assignment identifying themes in the cases we’ve looked at so far
4. After a collective brainstorming session to identify important types of data, code 25 cases into a spreadsheet [I use the result of the brainstorming session to come up with a coding system]
5. After a class discussion of the first round of coding, we tweak the coding system, adjust the coding to the first 25 cases as necessary, and code another 25 cases.
6. Informal writing assignment on patterns we’ve noticed so far
7. Research question for final paper
8. Research plan for final paper [identifying cases that they will use, and any additional primary or secondary source research.  Often this step includes things such as taking notes on more cases of a particular type]
9. First draft of research paper for peer review
10. Final draft of research paper

In addition to these assignments, I also set aside several class periods to work through the material together.  We catch up on previous assignments, and brainstorm directions for research papers.   

I’m not going to lie - it’s a lot of work to teach.  In order to make the results of the transcriptions and coding useful for the class, I have to do a lot of quality control.  Students have trouble reading the handwriting at first, and there’s a fair amount of idiomatic English that twenty-first century American college students have never heard before.  The first time I taught this, I forgot that students wouldn’t know what at kraal (homestead/cattle pen) was.  Now I give them a glossary to help, but there are always new terms to explain.  I do a lot of trouble-shooting with students; and while I block out time in class for this, inevitably it also consumes a lot of time outside of class.  I tell students not to beat their heads against the wall; if it takes them more than four hours for any of the note-taking/transcription/coding assignments, they should stop.  In practice, I end up finishing those up too. 

Despite the work, though, the class is incredibly fun to teach—and, I think, for the students to take.  Although I hear many complaints about handwriting, I think there’s a thrill in seeing the raw material of historical research in all its dirty, messy, illegible splendor; and in making something out of it.  After teaching the class once, I wondered whether I really needed to force the next set of students to transcribe cases that had already been transcribed by a previous group; the answer, I decided, was yes.

Thursday, February 21, 2019

Archive Fever, part 1: Translation and its Failures



Like many legal historians, I spend a good chunk of my life reading court records—and it’s one my favorite parts of my job.  I love it so much that I make my students do it too, even undergraduates!  I regularly teach a seminar in which I give students a volume of records from a customary court from early twentieth-century South Africa.    In the rest of this post, I’ll talk more about how I think about court records as a source.  Tomorrow, I’ll describe in more detail how I guide students to work with them; and next week, I’ll come back to highlight some of my favorite archival finds that might be interesting to those researching or teaching legal history elsewhere in Africa, or even beyond the continent.

Reading through court records is a pretty good introduction to the process of writing African history in particular.  Court records are an attractive source for historians of colonial Africa, even those with no particular interest in law.  Many of us work on times and places where literacy was restricted to a relatively small group of people, and court records provide one of the few instances where the voices of ordinary Africans appear to have been preserved. In writing Colonizing Consent, I found this to be particularly true for the question of rape, a subject that the colonial state largely cared about when it crossed racial lines, and which most newspapers (including those isiXhosa) discussed through delicate euphemisms.  By contrast, in court records, I found hundreds of isiXhosa-speaking men and women discussing not only their experiences of sexual violence but also their understanding of what kind of sex was wrong, and why.

Of course, as readers of this blog know, it’s more complicated than that. Even when court transcripts show litigants speaking in the first person, their testimony was profoundly shaped by the context in which it was produced.  Some of these processes are nearly universal: people go to court to make things happen, so the statements they make in court can’t be read as a transparent representation of their opinions or experiences.  Others are more specific to colonial courts. Court transcripts in the 19th century Eastern Cape were written in English, although litigants almost universally gave their testimony in isiXhosa.  And the process of translation was cultural as well as linguistic.  Most African litigants did not think about sexual violence either in the terms provided by colonial law; indeed, they did not necessarily know what court officials meant by those terms, which mapped poorly onto the isiXhosa words conventionally used to translate them. 

So what do we do with court records, if we want to write histories that include, or even privilege, the perspectives of ordinary litigants?  There is more than one answer to this question.  We can crunch numbers to identify the most prevalent forms of dispute, or mine transcripts for stray pieces of evidence that illuminate the path that litigants took before reaching the courtroom. I did both in my own research.  The disproportionate number of domestic servants accused of infanticide provided insights into the sexual exploitation that often accompanied such labor, while litigants who admitted taking their cases to local headmen before approaching the colonial court attuned me to the broader landscape of legal power in the Eastern Cape.

By far the most revealing court records I looked at, however, were those in which the process of translation failed in some way.  Again, sometimes, the failure was literal—court clerks reverted to isiXhosa for a word or phrase, providing evidence of the incommensurability between local and colonial ways of understanding the world.  More often, it was a matter of mismatched expectations.  Especially in the early years of colonialism, African men and women sometimes made charges of sexual impropriety using categories that were wholly unintelligible to colonial officials.  These cases pointed to the limits of forum-shopping as a model for explaining litigant behavior; more importantly, they revealed the kinds of claims that litigants thought they should be able to make.  They gave me access not to “authentic” views or experiences of individual men and women, but to the set of social norms that litigants expected to be able to appeal to.  Over time, they also showed isiXhosa-speaking men and women learning the language of colonial law, and using it to make their claims.  

Scholar Spotlight: Susanne Pohl-Zucker

Our Scholar Spotlight series continues with Susanne Pohl-Zucker, independent scholar. In our earlier interviews, we noted that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this Scholar Spotlight series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 


Susanne Pohl-Zucker is an independent scholar who lives in Oppenheim, Germany.

Websitehttps://independentresearcher.academia.edu/SusannePohlZucker

Alma mater: MA 1991, Ph.D. 1997, University of Michigan

Fields of interest: History of premodern criminal justice in Europe, legal procedure, ius commune, dispute resolution, law and emotions, disability history

Describe your career path. What led you to where you are today? My fascination with premodern history started when I read the novel "The Name of the Rose" as a teenager. I subsequently became a history major at the University of Tübingen, Germany, although an exchange program offered me the opportunity to move to the US and study at the University of Michigan in Ann Arbor. I loved the different teaching methods in the US, and I was excited about my first exposure to anthropological and cultural approaches towards medieval and early modern European history. Courses with Diane Hughes, Thomas A. Green and William I. Miller awakened my interest in legal history, especially the development of centralized criminal legal systems during the course of the early modern period. I applied to stay in the program and after obtaining my Ph.D., I first taught as a lecturer at Eastern Michigan University and then as an assistant professor at Cornell University in the field of early modern Europe. Family reasons led me back to Germany in 2003. After teaching as a lecturer at the universities of Tübingen and Frankfurt for a couple of years, I needed to find ways to adjust my work schedule to circumstances at home. I am now a part-time member of the pedagogical staff at a local learning center for people with cognitive disabilities and write about history as an independent researcher.

What do you like the most about where you live and work? The town in which I live is small, but the larger cities of Mainz, Frankfurt and Mannheim are close by. I often take advantage of the research opportunities that the universities and archives of these cities offer. I enjoy living in a rural area and like cycling through the surrounding vineyards or taking walks along the nearby river.

What projects are you currently working on? I am in between projects, but I have started thinking about and reading for a research project focusing on the parameters of an administrative and legal culture that both produces and restricts the implementation of inclusive education in Germany. I am also hoping to find the time soon to explore the early modern criminal trial records in the archive in Mainz.

Have your interests evolved since finishing your studies? For years, my research has centered on the legal settlement of homicide in premodern Europe. In my book Making Manslaughter: Process, Punishment and Restitution in Württemberg and Zürich, 1376-1700 (Brill 2017), I focus on the indeterminacy of legal practice and analyze the impact of governmental policies and disputants' strategies on judicial outcomes. While I was tracing among other things the ways in which expert legal discourse was appropriated by disputants at court and adapted to governmental aims, I was simultaneously struggling in my everyday life with current legal decisions and the political interests that inform them, concerning the education and work condition of children and adults with disabilities. The desire to contextualize and understand the origins of medical and legal arguments that propel and fuel the controversies surrounding these decisions sparked my interest in disability history a few years ago.

What’s the most fascinating thing you’ve ever found at the archives? During the course of my research, I was looking for sixteenth-century Swiss records of extrajudicial settlements in homicide cases. In most of these cases, only a copy of the final agreement survived. But once I got lucky and found records that documented the various stages of the negotiation between the disputing parties. There was even a letter containing the slayer's indignant complaints about the dishonoring stipulations that the victim's father wanted to impose on him.  

Is there an article, book, film, website, etc. that you would recommend to LHB readers? I highly recommend Dana Rabin's recent book Britain and its Internal Outsiders 1750-1800: Under Rule of Law (Manchester University Press, 2017). Her thoughtful and inspiring analysis of court cases in imperial Britain traces how an ideology of rule of law produced and maintained categories of difference based on gender, religion and race.

What have you found to be the most surprising thing about scholarly life? I never cease to be excited and surprised at how easy it is to connect with historians from so many different places with the simple question: "What are you working on?"

Wednesday, February 20, 2019

Chapman on Missionaries and the Establishment Clause

Nathan S. Chapman, University of Georgia School of Law, has posted Money for Missionaries: Rethinking Establishment Clause History:
In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and "civilize" the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian "taxpayer conscience" objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of "substantive neutrality" and supports the Supreme Court's current doctrinal trajectory of easing restrictions on government funding of religious education.

Schwartz on Implied Commerce Powers

David S. Schwartz, University of Wisconsin Law School, has posted An Error and an Evil: The Strange History of Implied Commerce Powers, which is to appear in the American University Law Review 68 (2019): 927-1014:
An underspecified doctrine of implied "reserved powers of the states" has been deployed through U.S. constitutional history to prevent the full application of McCulloch v. Maryland's concept of implied powers to the enumerated powers"in particular, the Commerce Clause. The primary rationales for these implied limitations on implied federal powers stem from two eighteenth and nineteenth century elements of American constitutionalism. First, the inability of pre-twentieth century judges to conceptualize a workable theory of concurrent federal and state power made it seem constitutionally necessary to limit the Commerce Clause and to refrain from applying the concept of implied powers to the Commerce Clause in order to preserve a substantial scope for state regulation. Second, because slavery so obviously fed into interstate and international trade, a robust application of implied powers to the Commerce Clause could naturally lead to a congressional power to "interfere with" the institution of slavery within the states. Antebellum judges and political leaders saw the implied limitation of such a power as an inescapable element of the constitutional bargain. These twin supports of the implied limitation concept have been eliminated from American constitutional law, yet the concept persists, with potentially significant consequences. In National Federation of Independent Business v. Sebelius, the 2012 Affordable Care Act case, for example, five Justices maintained that there is an implied limitation against regulating economic "inactivity." The justification offered for this is an abstract concept of federalism that is largely detached from the once powerful, but now defunct, principles of constitutional politics that sustained it.

Xia on justice and nationalism in wartime China

Back in 2017, Yun Xia (Valparaiso University) published Down with Traitors: Justice and Nationalism in Wartime China with the University of Washington Press. From the publisher:
Throughout the War of Resistance against Japan (1931-1945), the Chinese Nationalist government punished collaborators with harsh measures, labeling the enemies from within hanjian (literally, "traitors to the Han Chinese"). Trials of hanjian gained momentum during the postwar years, escalating the power struggle between Nationalists and Communists. Yun Xia examines the leaders of collaborationist regimes, who were perceived as threats to national security and public order, and other subgroups of hanjian-including economic, cultural, female, and Taiwanese hanjian. Built on previously unexamined code, edicts, and government correspondence, as well as accusation letters, petitions, newspapers, and popular literature, Down with Traitors reveals how the hanjian were punished in both legal and extralegal ways and how the anti-hanjian campaigns captured the national crisis, political struggle, roaring nationalism, and social tension of China's eventful decades from the 1930s through the 1950s.
Praise for the book:

 "Yun Xia's perceptive study traces the legal definition and the political usages of the profoundly emotive word hanjian (traitor). She looks at the years of the Resistance War and shows the ways in which the designation was used as China's political world was increasingly polarized." -Diana Lary

"Deeply researched and intriguing. Yun Xia details the scope of the traitor trials, which dwarfed the war crime trials of the Japanese." -Barak Kushner

"Wartime collaboration breeds treason trials-but trials in turn create collaborators by defining and punishing them. This book, the first in English, reconstructs the tangled political and legal processes in China that singled out those charged with aiding the Japan during the war, and that went on to influence mass campaigns after 1949." -Timothy Brook

Further information is available here.

Tuesday, February 19, 2019

Whittington on the Politics of Impeachment

Keith E. Whittington, Princeton University, has posted A Formidable Weapon of Faction? The Law and Politics of Impeachment, which is forthcoming in Law and Social Inquiry:
This essay draws on recent studies of the federal impeachment power and the issues swirling around the presidency of Donald Trump to consider the law and politics of impeachments. The impeachment process is inescapably political, but that does not mean that there are not constitutional rules, standards and considerations that can and will shape how the politics plays out. The most challenging constitutional questions surrounding the impeachment power relate to the scope of impeachable offenses. It is possible to rule out some possible interpretations of the constitutional language of “high crimes and misdemeanors,” but the standard for impeachable offenses that we are left with will still require contestable political judgment to apply in any particular case. Knowing whether a given act could be regarded as an impeachable offense is only the first step in determining whether an individual should be impeached and removed from office.

Scholar Spotlight: Mia Korpiola

Next in our Scholar Spotlight series is Mia Korpiola, University of Turku. Prof. Korpiola was one of three female contributors to the recently published Oxford Handbook of European Legal History.


Mia Korpiola is a professor of legal history at the Faculty of Law at the University of Turku. She lives in Vantaa, adjacent to Helsinki, in Finland.

Website: https://www.utu.fi/en/people/mia-korpiola  

Degrees: Candidate of Laws 1996, Licentiate of Laws (legal history) 1998, Doctor of Laws (legal history) 2004, title of Docent in Legal History (2007). Alma mater: University of Helsinki, Faculty of Law.
 

Fields of interest: reception processes, ecclesiastical law, family law, legal work, legal literacy

Describe your career path. What led you to where you are today? Finnish academic life has undergone profound changes during the last two decades. After I started my postgraduate studies, post grads and post docs have become increasingly dependent on external funding. Consequently, my so-called career resembles more a patchwork of funding and research projects than a path. Between 1997 and 2014, I had 12 different contracts, including post doc funding from the Academy of Finland, the Helsinki Collegium for Advanced Studies and the Turku Institute for Advanced Studies. Practically all were acquired through competition. Young researchers have to “sell” their research ideas and themselves as realizing these to funding institutions. Only a small percentage is successful. I have been lucky not to have other career breaks than maternity/parental leaves and even more fortunate to be hired in 2014. This was my first permanent job. I am currently one of the three professors of legal history of Finland. To my knowledge, I am also the first female full professor of legal history in the Nordic Countries. As for personal qualities, I am really passionate about research. When my scientific curiosity is awakened, I will dig until I get answers. Legal history research allows me to combine many interests: history, law, languages, people, art and so on. Writing is also fun and I have no difficulties in producing text.

How would you describe the places where you live and work? My university is situated three hours by public transport from where I live. The distance – and the overall situation – is far from ideal. On the other hand, my Faculty understands that commitment and productivity are not dependent on living and working in the same town. I am normally required to be present one day a week. Naturally more often when I am in the middle of my teaching period. However, I miss being a daily part of a scientific community. I also miss having “a room of my own”, as Virginia Woolf once expressed it. I have an office in Turku, but not where I work the most, at home. However, this is the price to be paid for the luxury of my permanent job as my family keeps me in Vantaa.

What projects are you currently working on? I and my research group are currently busy with the book Modern Vehicles, Risks and Regulation in Finland, 1830-1950 to be finished in 2019. I am also doing research related to my other research project Legal Literacy in Finland ca. 1750-1920: A Case of Popular Legal Learning in Premodern Europe (https://blogit.utu.fi/oikeudellinentietotaito/in-english/). In addition, I am part of an international research group writing a book on the history of medieval and early modern Nordic inheritance law.

Have your interests evolved since finishing your studies?
Yes, they have very much. This has partly been organic, partly conscious, as I did not want to be classified into the niche “medieval and early modern family law” – a marginalizing label – I had already received a couple of times when applying for a job. I felt this label did not do my research and publications justice, and I decided to widen my research topics to the twentieth century and the history of legal professions. Otherwise, one thing has led to another quite organically.     

What’s the most fascinating thing you’ve ever found at the archives? When I was reading Swedish ecclesiastical court records from the 1590s for my thesis (Between Betrothal and Bedding: Marriage Formation in Sweden, 1200–1600), I came across a cause initiated by a nobleman alleging that he had discovered on the wedding night that his young wife was no longer a virgin. This had created a huge family scandal causing a leading noble family to have its dirty linen washed in public – something that rarely happened. My curiosity awakened, I started to look for traces of the protagonists.  To my great amazement, I unearthed bits and pieces in various Swedish archives: letters and drafts, receipts, financial accounts, entries in German university enrollment registers, etc. I could never have believed that so many sources related to the case still existed. It felt almost as if the persons themselves wanted that their story be told. The result was an article, “Kerstin Oxenstierna’s Lost Maidenhead: Honour, Sin and Matrimonial Law in Late Sixteenth-Century Sweden”.

Photo caption: Mia Korpiola giving a speech at the Centenary of the ​Supreme Court of Finland, 1st October 2018. From the Collection of the Supreme Court of Finland, photographer Marjo Koivumäki, Studio Apris.



Monday, February 18, 2019

Pfander on the Military and Dicey's Rule of Law

James E. Pfander, Northwestern University School of Law, has posted Dicey's Nightmare: An Essay on the Rule of Law, which is forthcoming in the California Law Review:
The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today.

This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.

Hanley on nationality in Alexandria

Identifying with NationalityBack in 2017, Will Hanley (Florida State University) published Identifying with Nationality: Europeans, Ottomans, and Egyptians in Alexandria with Columbia University Press. From the publisher:
Nationality is the most important legal mechanism sorting and classifying the world's population today. An individual's place of birth or naturalization determines where he or she can and cannot be and what he or she can and cannot do. Although this system may appear universal, even natural, Will Hanley shows that it arose just a century ago. In Identifying with Nationality, he uses the Mediterranean city of Alexandria to develop a genealogy of the nation and the formation of the modern national subject.
Alexandria in 1880 was an immigrant boomtown ruled by dozens of overlapping regimes. On its streets and in its police stations and courtrooms, people were identified by name, occupation, place of origin, sect, physical description, and other attributes. Yet by 1914, before nationalist calls for independence and decolonization had become widespread, nationality had become the defining category of identification, and nationality laws came to govern Alexandria's population. Identifying with Nationality traces the advent of modern citizenship to multinational, transimperial settings such as turn-of-the-century colonial Alexandria, where ordinary people abandoned old identifiers and grasped nationality as the best means to access the protections promised by expanding states. The result was a system that continues to define and divide people through status, mobility, and residency.
Praise for the book:

 "What nationality are you? In his stunning book, Will Hanley follows this modern question deep into the social existence of ordinary Alexandrians, demonstrating the contradictory effects of its imposition. The results open a portal, not simply on a unique city in the tumultuous years between Ottoman rule and Egyptian semi-sovereignty, but also on a pivotal global experience that historians have missed. In this lucidly written and well-researched book, Hanley rewrites the history of international law and intervenes brilliantly in multiple literatures. A must-read." -Samuel Moyn,

"Hanley's book is a superb historical and sociolegal account of the rise of nationality—the universal regime of legal identification that captures what is unique about the modern world. Along the way, Hanley vividly captures the loss of another world: of concrete and heterogeneous forms of life that sought protection in other networks of affiliation. I recommend this remarkably researched and beautifully written book to scholars in Middle Eastern studies, and also to anyone who is thinking about a key characteristic of our world—the persistence of statelessness." -Samera Esmeir

"Identifying with Nationality is a magisterial investigation into Alexandria's diverse population, which comprised interwoven European, colonial, local, imperial, and national entities. Will Hanley examines this patchwork setting, clarifies that nationality at the end of the nineteenth century was a European privilege, and explores the process by which it would become what it is today: the most fundamental human right. An illuminating masterpiece." -Patrick Weil

Further information is available here.

Saturday, February 16, 2019

Weekend Roundup

  • The Law & Political Economy blog has been running a series (called "1LPE") on what it would mean to teach courses in the first-year law school curriculum from a law and political economy perspective. Perhaps not surprisingly, lessons from history are crucial. See, for example, this recent post by Michelle Wilde Anderson (Stanford Law School) on Property Law and the creation of the racial wealth gap. See also this post, by Kali Murray (Marquette University Law School), on "teaching from narrative" and how she makes use of the diary of an antebellum African-American abolitionist.
  • From the American Political Development blog A House DividedCalvin TerBeek on "how conservatives embraced the Bill of Rights and incorporation."
  • Max Planck Institute for European Legal History has issued a call  for Postdoctoral and Research Scholarships 2020.  Deadline 31st May 2019.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 15, 2019

WHA Weber-Clements Prize to Lim for "Porous Borders"

Via the Western History Association's Twitter feed, we've learned that legal historian Julian Lim (Arizona State University) has won this year's David J. Weber-Clements Prize (best non-fiction book on Southwestern America) for Porous Borders: Multiracial Migrations and the Law in the U.S.-Mexico Borderlands (University of North Carolina Press).

Congratulations to Professor Lim!

Cunningham and Egbert on Corpus Linguistics and the Emoluments Clauses

Clark D. Cunningham, Georgia State University College of Law, and Jesse Egbert, Northern Arizona University, have posted Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses, a paper for the Fourth Annual Conference of Law & Corpus Linguistics (2019)
In interpreting the Constitution's text, courts "are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from their technical meaning'." District of Columbia v. Heller, 554 U.S. 570, 576 (2008). According to James Madison: "[W]hatever respect may be thought due to the intention of the Convention, which prepared and proposed the Constitution, as a presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed through the Conventions which ratified the Constitution."

In looking for "presumptive evidence of the general understanding at the time of the language used" courts have generally relied on dictionary definitions and selected quotations from texts dating from the period of ratification. This paper presents a completely different, scientifically-grounded approach: applying the tools of linguistic analysis to "big data" about how written language was used at the time of ratification. This data became publicly available in Fall 2018 when the website of the Corpus of Founding Era American English (COFEA) was launched. COFEA contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.

The authors illustrate this scientific approach by analyzing the usage of the word emolument by writers in America during the period covered by COFEA, 1760-1799. The authors selected this project both because the interpretation of two clauses in the Constitution using emolument are of considerable current interest and because the meaning of emolument is a mystery to modern Americans.

Pino and Witt on the 14th Amendment

Lisset Marie Pino, a student at the Yale Law School, and John Fabian Witt, a professor at the Yale Law School, have posted The Fourteenth Amendment as an Ending: From Bayonet Justice to Paper Rights:
Since its enactment and ratification, savvy observers have viewed the Fourteenth Amendment as a vindication of the military experience of the Civil War. Bullets and bayonets in wartime led to peacetime citizenship in Section 1 of the Fourteenth Amendment and to peacetime ballots that were first protected in Section 2 of the Fourteenth Amendment and then bolstered in the Fifteenth Amendment. But there is another story to tell as well, one in which the Fourteenth Amendment is not the beginning of a new constitutional story, or at least not only the beginning of a new story, but also a betrayal and an ending. In important respects the Fourteenth Amendment helped to close out the righteous form of power that had emerged in the antebellum era as a solution to the glaring injustice of slavery. This crucial authority was the federal government’s war power. Stories of vindication and of new beginnings are not wrong. But they make it all too easy to miss the Fourteenth Amendment’s role as part of a complicated denouement of the wartime experience, one that embodied the war’s triumphs but also blunted their force and pace. The Fourteenth Amendment abandoned a vital chapter of American history even as it occasioned a new one whose results are still unfolding.

Emerson's "The Public Law"

Blake Emerson, UCLA Law School, has published The Public's Law: Origins and Architecture of Progressive Democracy (Oxford University Press):
The Public's Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought.

G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel's view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal. It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946.

The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning.

Thursday, February 14, 2019

Exhibit: HLS and the Bauhaus

[We have word a new exhibit at the Harvard Law Library: Creating Community: Harvard Law School and the Bauhaus.]

2019 marks the centennial of the Bauhaus, and Harvard is celebrating! The Bauhaus, considered the twentieth century's most influential school of art and design, has deep connections to Harvard, including the Law School. Did you know that Harvard's first example of modern architecture is on the HLS campus and was designed by Walter Gropius, the founder of the Bauhaus? Or that Gropius commissioned Bauhaus pioneers to create site-specific artwork for the buildings?

If you are in the Boston area, come explore HLS's connection to the Bauhaus and its role in shaping campus life. The exhibit, curated by Karen Beck and Lesley Schoenfeld, is on view daily 9 to 5 through 31 July 2019 in the Caspersen Room, Langdell Hall. A sampling of the exhibit is online. If you are a Bauhaus fan, be sure to visit all of Harvard's Bauhaus-related exhibits, tours, and events happening in 2019.

Socialist Interpretations of Legal History in Soviet-Occupied Eastern Europe

[We have word of the following workshop.]  EuroStorie and Institut für Neuere Privatrechtsgeschichte, Deutsche und Rheinische Rechtsgeschichte are co-organizing "Socialist interpretations of legal history" workshop at the University of Cologne in March (22.-23.3.).

Socialist interpretations of legal history. The histories and historians of law and justice in the GDR, Poland and the Baltic states under the reign of communism

The aim of the workshop at hand is to concentrate on the interaction between historians and communist regimes, but rather than investigating the control exercised by the communist states, we focus on the position of legal historians and their representations of history. How did the historians see the recent past, and how did that affect their vision on the future? What elements remained from the era preceding communism, and with what means did the scholars find leeway between strict ideological preconditions and their scholarly identity?

After the Second World War, the Soviet occupied Eastern part of Germany, Poland and Baltic States all experienced – in a varying thoroughness – a drastic reorganization of higher education, which was purported to root socialist worldview to their respective academia. Consequently, in the following years also legal scholars advertised the anti-fascist, peaceable and democratizing characteristics of socialist law as an antidote to all what the western legal system supposedly encouraged and embodied.  At the same time western continental legal science concentrated on the long lines of legal history, constructing its view as an exact opposite to what started to take shape as the socialist legal science.

Rather than treating legal history and jurisprudence as mere political tools of the communist regimes, our workshop at hand focuses on the history of the scholarly representations of legal history and jurisprudence. We presume that writing the history of a community or a legal system left free space for scholars to express themselves as scientists, citizens and temporal subjects, even in communist regimes. Furthermore, we argue that this space for personal interpretation becomes evident in the works of the legal historians and legal scientists. 

The workshop is being arranged in a cooperation by the Centre of Excellence 'Law, Identity and the European Narratives'  at the University of Helsinki and The Institut für neuere Privatrechtsgeschichte, University of Cologne. The workshop attempts to bring together scholars and approaches from variety of disciplines and fields of study. Our confirmed key-note speakers are Michal Kopecek (Jena/Prague), Marianna Muravyeva (Helsinki) and Lauri Mälksoo (Tartu). In order to analyze the ‘socialist interpretations of legal history’ in different times and regions across the Eastern Central Europe and former USSR, our workshop concentrates on (but is not restricted to) the following characteristics of socialist legal science and historiography.

Books I Didn’t Write, or, Is Anyone Looking for A Dissertation Topic?


My research for Colonizing Consent opened up far more questions than I could reasonably answer in the space of one book.  Like many academics, I’ve developed a long list of topics that I think could use a book-length treatment.  I’m holding on to some of these for my own purposes.  One—the intellectual history of customary law in turn-of-the-century South Africa—has become the focus of my current research.  I hope to find time in the next few years for article-length treatments of several others.  But I’ve found more interesting research subjects than I could plausibly get to over the rest of my career—some of which would require me to reinvent myself as a historian of British colonialism, rather than Africa—so I thought I’d take this opportunity to pitch a few of that might be relevant to readers of this blog.  

1.  Black Peril and White Supremacy in the Anglophone World, ca. 1865-1914
Colonizing Consent is mostly not about “black peril,” the term used in South African and other British settler colonies to refer to fears about the rape of white women black (or other “native.”)  I wanted to write about women’s actual experiences of sexual violence, and the vast majority of rape in colonial South Africa was committed within racial groups, while black women were much more likely than white women to be victims of interracial rape.  So while black peril panics certainly play a role in the story that I tell, they are not its primary focus.
In my research, however, I read through the major African-owned newspapers in the Eastern Cape, Imvo Zabantsundu and Izwi Labantu.  I was struck by the close attention that these newspapers paid to the racial politics of not only other African settler colonies such as Kenya and Rhodesia but also the United States and, to a lesser degree, Australia and New Zealand.  White newspapers, too, constantly looked abroad to these other settler territories as the logical comparison to South Africa.  This was particularly true for discussions of interracial rape.  In both black and white newspapers, lynchings in the American South provided the specter of what could happen in South Africa if the South African state did not deal adequately with the problem—although, unsurprisingly, black and white newspapers tended to propose quite different solutions.  For someone interested in transnational histories of law and sexuality, there would be a rich payoff following up these conversations.


2.  Custom in the British Legal Imagination
As Colonizing Consent notes in passing, British colonial administrators in the Cape Colony grappled with the proper relationship between law and custom only a short time after British legal reforms had drastically changed the place of custom as a category in metropolitan law.   I am far from the first scholar to note this.  Martin Chanock’s classic Law, Custom and Social Order contains an extended, and rich, discussion of the ways in which British administrators sought to read African law through analogy to the common law tradition.  The mapping of geographical legal difference onto chronological ‘evolution’ was a staple of early comparative legal scholarship.  Just yesterday, I was reading Dorothy Hodgson’s Gender, Justice, and the Problem of Culture, which notes a 1930s example of the direct invocation of British legal rules for determining custom in the effort to create “native courts” in Tanzania.   But I haven’t found anything that fully connects the history of British legal reform on customary law to the development of ideas about “native law and custom” in the British Empire.  This is a particularly important story in Sub-Saharan Africa where—unlike in South Asia or in Islamic North African colonies—British administrators understood custom not as secondary to religious law, but as the primary category through which indigenous law was conceptualized.  
I’ll never write this book, because it would take me farther out of African history than I want to go.  My current research, however, tackles some of the same questions from African perspectives.  I’m interested in how black intellectuals in colonial and segregation-era think about the relationship between precolonial law, official customary law, and alternative ways of “modernizing” custom.  I would love to read a book that traced British perspectives on these questions from the metropole into the African colonies—probably via British India, and perhaps other colonial territories.  


3.  White South African Lawyers before 1912
Famously, first fully qualified black South African lawyers returned home in the early twentieth century, where three of them—Alfred Mangena, Pixley ka Isaka Seme, and George Montsoia—promptly organized the first meetings of the organization that would become the African National Congress, the most significant black political organization of the 20th century and the governing party of South Africa since 1994.  They were pioneers; but the legal profession they joined was shaped by the white lawyers who dominated it.  In the court cases a read from the eastern Cape, a handful of black “law agents” represented African clients (I’ll write more about them in another post) but the vast majority of black litigants who had any legal representation worked with white lawyers. 
The history of these white lawyers has been told, if at all, primarily by academics at South African law schools, who have narrated the professionalization of legal practitioners over the course of the nineteenth century and their role in the creation of the judicial structures of the four pre-union territories and, subsequently, the Union of South Africa.  Much of this work is painstakingly researched and of excellent quality, but it is interested in very different questions from those which animate the rest of South African history.  While recognizing that white lawyers were implicated in the creation of the structures of white supremacy, this legal scholarship does not generally engage with precisely how these white lawyers thought about race, and how the experience of legal practice shaped the racial knowledge of both lawyers and of the broader public.  There is nothing, at least to my knowledge, that treats law and lawyers the way that Saul Dubow’s Commonwealth of Knowledge treats science and scientists.  Gender is similarly present as subject, but largely absent as an analytical category, despited the robust critical legal studies scholarship on gender and law in South Africa since 1948.  
Again, I’m not going to write this book, largely because I don’t have time; I’m following different threads from my first book, which lead me in a different direction.  But I would love to see someone else pick these up.  


If anyone reading this is interested in one of these topics - perhaps you were already working on them, and needed no prompting from me, or perhaps you know of work on these subjects that I haven’t come across - please feel free to get in touch!  In all three cases, I have thoughts about sources that might be useful, and I’m generally eager to hear from anyone who is working on South African legal history, since there aren’t so many of us.  

Scholar Spotlight: Sara McDougall

Our Scholar Spotlight series continues, today featuring Sara McDougall, John Jay College and CUNY Graduate Center. In our first interview, we noted that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this Scholar Spotlight series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 

Sara McDougall is Associate Professor of History at John Jay College of the City University of New York (CUNY) and appointed to the CUNY Graduate Center in French, History, and Medieval Studies. She lives in New York.



Alma maters: Yale University, Ph.D. in History, May 2009. BA in History Boston University, 2003.

Fields of interest: legal history, family history and family law, culture, gender studies, social history, comparative law, medieval studies, world history.

Describe your career path. What led you to where you are today?
My childhood dream was to become an opera singer and I started college as a voice performance major but was shocked to find myself desperately missing reading and writing. I seriously flirted with the idea of becoming a playwright but in the end it was reading and writing and teaching history, legal history, that I found the most satisfying and engaging way of spending most of my time, and I still feel that way.

What do you like the most about where you live and work?
I love the social justice mission of John Jay College, and our wonderfully diverse student body. I find teaching at CUNY satisfying - if always challenging - and take greatest pleasure in the fact that graduating from CUNY seems to improve students' economic mobility out of poverty. I am also really looking forward to co-teaching a graduate seminar with Julie Suk in 2019, "Mothers-in-Law," which will examine the legal history of mothers as legal subjects, as lawmakers, and as lawbreakers.

What projects are you currently working on? I am writing a book on the consequences of illicit pregnancy for mothers in medieval France. It investigates what women pregnant out of wedlock could do and did do, what was done to and for them. I have found a wide range of responses. They run a gamut from horror stories of domestic violence and killing to far happier stories in which mothers and children are provided for, and the mothers able to find work or husbands, and even able to resume monastic life as nuns (or abbesses!). While late medieval France generally deserves its reputation as a dangerous and intolerant place, for a variety of reasons it was more charitable towards women pregnant out of wedlock than we might expect. Certainly I have been surprised how often the medieval sources suggest efforts at better treatment of pregnant women, and of singlemothers, than we can find in the United States today.
I am also co-authoring an article on infanticide in late medieval Burgundy with Rudi Beaulant, and working as well with a wonderful group of scholars on the long history of infanticide in Europe and the Americas.

Have your interests evolved since finishing your studies? Not really! Many of the topics I write about are those that attracted me to legal history in the first place, the human stories we can find in historical sources, and court records in particular. Comparative work has always been important to me. I am hoping to begin more work with biographical and public-facing history.

What's the most fascinating thing you've ever found in your primary sources?
The records of royal pardon from late medieval France are a treasure trove for the social historian, or for anyone interested in law, culture, gender, or crime, of course. Reading these pardons we are drawn in and drawn out, we find ourselves alternatively rooting for the criminal, or deploring what to us seems like a miscarriage of justice when a villain escapes punishment. The storytelling in these pardon narratives reveal something about us as well as the behaviors of the past they document and justify.
For example, I was surprised and more than a little horrified to find myself cheering after reading a sad story of an abandoned young pregnant woman who at every stage seemed likely to seek to harm her infant and herself, but who instead decided to burn down her lover's house and subsequently sought and obtained royal pardon. I had not expected to find myself ever smiling at arson, but there was something that felt good in that her dangerous act, which allegedly caused no harm or injury beyond loss of property, but which also seemed to take vengeance not just on her lover but on the oppressive and intolerant patriarchy that we might assume would be all too quick to forgive his indiscretion while condemning her for "allowing herself to be impregnated by him." Much harder to enjoy are the all-too frequent accounts of rape and domestic violence that were also pardoned. These pardons, therefore, force us to confront both the complex role of mercy in medieval justice, and also some inconsistencies in our own ideas about right and wrong and the appropriate use of punishment.

Update: read Sara McDougall's recent Made by History op-ed in the Washington Post here.

Wednesday, February 13, 2019

Newman, "A Dark Inheritance: Blood, Race, and Sex in Colonial Jamaica"

Recently out from Yale University Press: A Dark Inheritance: Blood, Race, and Sex in Colonial Jamaica (2018), by Brooke N. Newman (Virginia Commonwealth University). A description from the Press:
Credit: Virginia Commonwealth University
Focusing on Jamaica, Britain’s most valuable colony in the Americas by the mid-eighteenth century, this book explores the relationship between racial classifications and the inherited rights and privileges associated with British subject status. Brooke Newman reveals the centrality of notions of blood and blood mixture to evolving racial definitions and sexual practices in colonial Jamaica and to legal and political debates over slavery and the rights of imperial subjects on both sides of the Atlantic. 
Weaving together a diverse range of sources, Newman shows how colonial racial ideologies rooted in fictions of blood ancestry at once justified permanent, hereditary slavery for Africans and barred members of certain marginalized groups from laying claim to British liberties on the basis of hereditary status. This groundbreaking study demonstrates that challenges to an Atlantic slave system underpinned by distinctions of blood had far-reaching consequences for British understandings of race, gender, and national belonging.
A few blurbs:
“In this richly researched and cogently argued book, Brooke Newman reveals how ideas about blood and law and the making of a slave society in colonial Jamaica helped to construct as well as deconstruct racial difference in the imperial order. Few historians have done a better job of analyzing the intersections of gender, sexuality, and race in the print culture of the British Empire. A must read for any historian of slavery and abolition.”—Manisha Sinha

“Brooke Newman's fascinating account of colonial Jamaican racial politics reveals the British investment in concepts of inherited blood, birthright, and Christianity as the legal foundation for English privilege and enslaved African subordination.”—Kathleen M. Brown
More information is available here. And you can find a nice Q&A with Professor Newman about the book here.

Rio on slavery in early medieval Europe

Back in 2017, Alice Rio (King's College London) published Slavery After Rome, 500-1100 with Oxford University Press. From the publisher:
Slavery After Rome, 500-1100 (Oxford Studies in Medieval European History)
Slavery After Rome, 500-1100 offers a substantially new interpretation of what happened to slavery in Western Europe in the centuries that followed the fall of the Roman Empire. The periods at either end of the early middle ages are associated with iconic forms of unfreedom: Roman slavery at one end; at the other, the serfdom of the twelfth century and beyond, together with, in Southern Europe, a revitalized urban chattel slavery dealing chiefly in non-Christians. How and why this major change took place in the intervening period has been a long-standing puzzle. This study picks up the various threads linking this transformation across the centuries, and situates them within the full context of what slavery and unfreedom were being used for in the early middle ages. 
This volume adopts a broad comparative perspective, covering different regions of Western Europe over six centuries, to try to answer the following questions: who might become enslaved and why? What did this mean for them, and for their lords? What made people opt for certain ways of exploiting unfree labor over others in different times and places, and is it possible, underneath all this diversity, to identify some coherent trajectories of historical change?
Praise for the book:

"Rio has done a splendid job of analysing an extremely intractable source base and providing an interpretation that, without in any way trying to smooth over the inconsistencies and messiness of the evidence, nevertheless makes sense. Her book forces us to rethink narratives regarding the importance of the slave trade for the early European economy....She has done a tremendous service by giving us a new basis for discussion of one of those elements of social transformation. This study will be an indispensable addition to any and every library (and course bibliography) that includes early medieval history in its remit."-Shami Ghosh

"This excellent work provides a new lens for understanding the many varieties of early medieval unfreedom, and readers should welcome the clarity Rio has brought to this topic....Highly recommended."-Choice

Further information is available here.

Tuesday, February 12, 2019

Mortenson on What Article II Vests

Julian Davis Mortenson, University of Michigan Law School, has posted Article II Vests Executive Power, Not the Royal Prerogative,which is forthcoming in the Columbia Law Review:
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.

Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.

Scholar Spotlight: Saskia Lettmaier

Earlier this fall we noted that only three of the fifty contributors to Oxford Handbook of European Legal History were women. Knowing that there are numerous women scholars whose voices would enrich a conversation on European Legal History, we have decided to spotlight some of them in a series of posts. As our colleagues at the “Women Also Know History” media platform note, there are “concrete way[s] to address explicit and implicit gender bias in public and professional perceptions of historical expertise.” We hope that this series of interviews will be one of them. (H/t: AHA Member Spotlight series.)

Prof. Dr. Saskia Lettmaier, B.A. (Oxford), LL.M., S.J.D. (Harvard)We begin the series with Saskia Lettmaier,  Professor of Law at Kiel University in Germany. 



Alma Maters: 
  • Oxford University, B.A., 2002
  • Harvard Law School, LL.M., 2003
  • Bamberg University, PhD, 2007
  • Erlangen University, First State Exam in Law, 2009
  • Harvard Law School, S.J.D., 2015
  • Regensburg University, Habilitation, 2016

Fields of Interest: All private law subjects, with a particular emphasis on family and succession law; legal history, with a particular emphasis on the early modern and modern periods in England and Continental Europe; comparative and private international law; law and culture

Career path: I have had a fairly unusual career path. I never planned to be a law professor. And I certainly did not plan every step on the way to becoming one. I was born in Germany, and I completed my secondary school education there. However (perhaps because I was an avid Jane Austen reader during my teenage years), I have always had a strong penchant for the Anglo-American world. This is what first brought me to England to study law at Oxford, and this is what subsequently brought me to Harvard to study an Americanized version of the common law. While an LL.M. student at Harvard, I had the good fortune to enroll in a course on wills and trusts with Charlie Donahue. For my LL.M. paper, I drafted two wills for my grandmother on the alternative hypotheses first that she was a resident of Germany and second that she was a resident of Massachusetts. The main body of my work consisted in comparing the results both from a planner’s and a client’s perspective. This LL.M. drafting exercise fixed my interest in family and succession law as well as my interest in comparative law. And it introduced me to Charlie Donahue, who ended up being my doctoral supervisor and a tremendous mentor long after my LL.M. studies were finished.
What do you like most about where you live and work: Kiel is a city in the north of Germany, and it reminds me a lot of England and also of Boston. People here have a Nordic attitude and a Nordic sense of humor. Plus, Kiel is situated right on the Baltic Sea. I am teaching at a university that recruits its students mainly from the Bundesland (i.e. the German state of Schleswig-Holstein, of which Kiel is the capital city). As a result, university life here has a very earthy, heartfelt atmosphere. Add to that a bunch of very supportive colleagues, always keen on collaborative endeavors, and it’s really heaven on earth.

What projects are you currently working on? My research focuses on the history as well as the contemporary practice of family and succession law. I am equally committed to both. When it comes to contemporary issues, I am trying to devise a more equitable approach to balancing private autonomy and protection for the weaker party in spousal and other in-family contracting. As a legal historian, I tend to explore the history of family law, and in particular the history of marriage law. I generally do so through a comparative perspective, with Germany and England as my main comparators. Right now, I am writing a book chapter on marriage law during the inter-war period in England and Germany.

Have your interests evolved since finishing your studies? I dare say they have become more tailored and more narrowly focused, but the big picture was there early on: my techique is historical-comparative, and my favourite subject matter is the history of family law and the history of wills and trusts.

What’s the most fascinating thing you have ever found while doing your research? My most fascinating find dates from my doctoral research on breach-of-promise actions in 19th-century England. I was investigating a very famous mid-century breach-of-promise case brought by one Mary Smith against a noble individual, and I was anxious to know what became of Miss Smith after the trial (which she resoundingly lost) had ended—no easy task, considering what a common name she had. I was greatly helped by her grandfather’s will (discovered at a record office), which disclosed that she had married one Kosciusko Hyde Kent Newbolt (not a common name by anyone’s standards). From there it was an easy task to trace her to her death in Liverpool.

Is there an article, book, film, or website that you would recommend to LHB readers? I strongly recommend the British Newspaper Library, which offers an extensive collection of British and overseas newspapers in print, on microfilm and as digital copies. Much of the content has recently become available online via the British Newspaper Archive. It’s a treasure trove for externalist legal historians like myself, who like to study law in its social context.

What have you found to be the most surprising thing about academic life? I never thought I would have as much freedom to pick and choose my research topics, and I never thought that I would enjoy it so much.