Byrne's "Law in the New Democracy" and Book Launch

On Thursday, July 2, from 6 PM - 7 PM at the Chau Chak Wing Museum in Camperdown, NSW, Paula Jane Byrne speaks about her new book Law in the New Democracy exploring development of a legal system in colonial New South Wales. It is published by ANU press and with the assistance of the Francis Forbes Society for Australian Legal History.  Here is the press's description of the book:

In the 1850s, opposition to the Crown in New South Wales made for unsteady ground for the administration of criminal law. This study of skirmishes between magistrates, constables and the metropolis reveals just how far understandings of law could be stretched and warped by recalcitrant local populations. At Carcoar, the local population entirely controlled how law worked; on the South Coast, ‘the people’ influenced how law intervened in their lives; in the north west of the colony, publicans dominated; on the north coast, violence against First Nations/Aboriginal people was forcibly meshed into the day to day working of the courts. This study shows a ‘frontier’ centred on the coasts and in the minds of legal officials of the metropolis, but elsewhere, some recognition of the Aboriginal polity and an early understanding of Aboriginal rights.

And here is the description of the book launch:

Democracy in the 1850s was felt to be fragile and uncertain. At any moment, the rhetoric of the Legislative Council and Assembly tells us, the rights obtained by the citizenry might be thwarted by the cunning manoeuvres of the English crown.

Such rhetoric would shape how colonial New South Wales viewed criminal law. Across the colony, desultory clerks filled sheets of paper with the words of victims and witnesses, words that would be carried to the metropolis, to the offices of legal officials. Dragging behind these words were the chained prisoners of the colony, eager on their journey to obtain money for a barrister in court.

This discussion examines the traces of such events and the role of the historian of 2026 in interpreting them. It addresses right of reply by Aboriginal people to history making. It questions the idea of a move into lawlessness the further we travel from Sydney and the idea of the frontier.

--Dan Ernst

AJLH 64:4

We're a bit late in noticing it, but the American Journal of Legal History 64:4 has been published: 

Mr Locke’s enclosure: the uncommon law of property in the Second Treatise
Hannah Carrese

John Locke, famously, told a property origin story. This article tells a property theory origin story, asking how Locke’s property theory, which omits common rights, emerged from a common law of property that centred them—and showing how this omission influenced the colonial American law that Locke drafted. Locke was silent on or rejected the common law of property, which recognized common rights and defences against privatization of commons through enclosure. Instead, Locke adopted law reform arguments lauding enclosure because it improved waste land. Locke’s property theory therefore attempts to improve the common law of property by orienting it around private rather than common property. He asks a question about the origin of property absent from common law: how do we create private rights to common land? He takes ‘waste’ to have purely negative connotations, avoiding the neutral meanings of that word at common law. And he stipulates that enclosure of English commons requires only tacit consent of commoners, excluding common law defences against enclosure. Locke’s is an equal opportunity enclosure. His spoilage principle and plan to reform Virginia’s land laws sought to benefit the poor by preventing vast enclosures and rural depopulation. However, he theorized a clean chain of title, absent in common law, which could prevent messy disputes over wealthy estates. This article shows the common law background from which Locke departed, thus deepening understanding of both our private property regime, often justified by Locke’s property theory, and a sometimes-overlooked alternative to it, the common law of property.

The laws of ‘an old and settled society’? The law of contract in New South Wales 1815–1850
Warren Swain

The history of contract law in New South Wales in the decades after the closure of the Court of Civil Jurisdiction in 1814 has not received much attention from legal historians. This is an important omission. At the heart of this story is a simple but critical inquiry: the way in which the law of contract in the colony mirrored or diverged from the law of contract that applied back in London. This was rarely a matter that judges addressed explicitly. Piecing together the relationship is an exercise in reconstruction. This can only be done by examining the body of case law. The creation of the Australasian Colonial Legal History Library, combined with readily searchable newspaper reports, has made this easier. The evidence in the mid-nineteenth century is still sometimes sketchy. Context is relevant. The colony moved from a quasi-military penal colony to a significant hub of commercial activity. The period also saw a shift in the legal system as the old informal systems evolved into a much more legalistic one. For the most part, New South Wales contract law was aligned with that in England. Some issues, like the desertion of sailors demanded local solutions. There are other examples in which well-established English contract doctrine did not necessarily fit very well with the conditions of the colony.

Who is a central bank for? The founding and legal design of the Bank of Canada
Dan Rohde

The Bank of Canada is an independent Crown corporation that sees its primary responsibility to be promoting Canada’s economic welfare by maintaining low and stable inflation. When it was first created in 1934, however, the Bank was a radically different institution—a privately owned corporation primarily meant to anchor Canada’s economy globally and manage foreign exchange. Not only was the Bank not tasked with managing inflation, but key policymakers behind its founding thought doing so would be a severe mistake. This article offers the first legal history of the Bank’s founding. It maps the enormous public debate that accompanied the creation of the Bank and the various, often contradictory visions expressed for it. The article labels these five visions: a Bankers’ Bank, a Government Bank, an Imperial Bank, an Economists’ Bank, and a Bank of the People. The article then looks at the original legal design of the Bank and argues that it largely fit the Imperial Bank model. Charting this history helps us better understand this vital organ of Canadian government, and has the potential to upset many of our accepted, contemporary notions of central banking.

--Dan Ernst 

Barnett and Barnett on the Burwood Ejectment Case

Katy Barnett, Melbourne Law School, and Lynne Barnett have posted "Equity’s Darling" and the Burwood Ejectment Case: A Turning Point in Colonial Australian Law, which appeared in Australian Law Journal:

The Burwood Ejectment case arose when the ad hoc executor and trustee of a will in early colonial Sydney sold off Burwood Estate to meet the testator's debts, after receiving a court order empowering him to do so. Twenty years later, the testator's de facto wife and children successfully voided the sale. The purchaser was ejected, notwithstanding the fact that he was a bona fide purchaser for value without notice. The decision undermined confidence in security of transactions in the Colony and created a political furore and ongoing disputes. It is suggested that the case was a contributing factor to the creation of the Judge in Equity in New South Wales and illustrates broader issues with security of title and the political and legal organisation of early colonial Australia. 

--Dan Ernst 

Sunday Roundup

• NYU Law's notice of Ashraf Ahmed, Lev Menand, and Noah Rosenblum's article, "The Making of Presidential Administration,” upon its naming as winner of the annual Award for Scholarship in Administrative Law from the American Bar Association Section of Administrative Law and Regulatory Practice. The notice also includes a Q&A with Rosenblum. 

• Historical research figured prominently in the decision of Judge Chad F. Kenney, Eastern District of Pennsylvania, turning aside a challenge to the qui tam provisions from the False Claims Act on unitary executive grounds (JDSupra). 

• A notice of UC Berkeley professor David Henkin's legal-history-laden course on love, sex and marriage. 

• In March, SWOP NSW will host walking tours of Sydney’s historic "red light district."  “With 8 speakers each evening, the tour will cover both the personal anecdotes of those involved in sex work and the legislation that has shaped their lives. Speakers will share their stories on various topics, including current, historical, and future laws that aim to protect sex workers, as well as the advocates who have been instrumental in achieving these legal advancements." 

• Vice President Mike Pence and former Deputy Assistant to the President Greg Jacob are teaching the course, The Character of the American Constitution, at George Mason’s Schar School of Policy and Government.  The first class “walked students through the origins of the Declaration of Independence, exploring what the Declaration meant and where the writers got the ideas.”  (GMU).

--Dan Ernst 

JLH 45:2

The Journal of Legal History 45:2 (2024) has been published open access online.  With a hat-tip to ESCLHblog, here is the TOC.  DRE]

The Common Law and Civil War in Fourteenth-Century England: The Prosecution of Treason and Rebellion Under Edward II, 1322–1326 
Sophie Thérèse Ambler

What did it mean for poor and middling men and women to take up arms against their government? How did they negotiate competing claims for their participation in civil war and what consequences confronted them? This article analyses the crown’s investigation of its opponents following the 1321–22 civil war, comparing its predecessor of the Montfortian civil war (1263–67), to examine how the king, justices and juries tackled these questions. It demonstrates how the crown rooted the summary conviction and execution of Thomas of Lancaster and other noble insurgents in common law procedure; then, at the King’s Bench and a special inquiry in the Welsh Marches, re-framed treasonous offences to tackle non-noble insurgents; then, fearing a new uprising, instrumentalised the common law’s machinery to gather military intelligence. The crown recognized the agency of subjects across society in civil war and juries were ideally placed to investigate it; they also weighed subjects’ culpability, balancing obligation to the king against the mitigating realities of coerced participation in war. Thus, juries and the communities who informed their verdict were invited to engage with the ethical and legal dilemmas of civil war. This article thus presents a people’s history of treason.

On the Origins of Invalidation of British Colonial Legislation by Colonial Courts: The Van Diemen’s Land Dog Act Controversy of the 1840s – Part One
Ian Loveland

By 1865 British Imperial governments had accepted that colonial courts had the authority to invalidate colonial statutes which contravened the relevant colony’s constitution. This situation arose notwithstanding the lack of any express grant of such jurisdiction to colonial courts in Imperial or colonial legislation. This paper evaluates the first instance of a colonial court asserting that jurisdiction, during the Dog Act crisis in Van Diemen’s Land (Tasmania) in the 1840s. Part one of the paper charts the background to, conduct of and judgment in the relevant litigation. The second part, which will appear in a future issue of this journal, explores the consequential attempts of the colony’s Governor to remove the judges from office and to re-enact the invalidated colonial law. The suggestion made is that the Dog Act controversy provides considerable insight into how, despite the absence of any explicit statutory grant of such jurisdiction, the power of judicial review of colonial legislation by colonial courts became established as an orthodox element of British colonial constitutional law in the latter nineteenth century.

Crime, Trade Marks and Soft Trade Policy in the Interwar Era: Market Realities and the Merchandise Marks Act 1926
Elena Glover

This article explores a facet of the relationship between trade marks and the criminal law in the UK in the interwar era, a pivotal period of transition in UK economic policy from free trade to a more managed economy. Drawing together insights from legal, business and economic history, we show that, in the interwar years, the context of domestic politics and wider international trade policy, produced a greater focus on the relationship between trade marks and market-place understandings of the national origin of manufactured products. This context included the passage of the Merchandise Marks Act 1926, a criminal law statute that stipulated the circumstances in which imported goods were to be marked with an indication of national origin, and included a criminal offence regulating trade marks enforced by prosecutions brought by the Board of Trade. We argue that the criminal law regulating trade marks became entwined with ‘soft’ trade policy, i.e. a means of protecting the domestic/empire market falling short of tariff protection. Drawing on substantial original archival research, we explore the problems that confronted the Board of Trade when it enforced the 1926 Act in view of market realities.

Book reviews

Contractual Relations: A Contribution to the Critique of the Classical Law of Contract by David Campbell, Oxford, Oxford University Press, 2022, xxiv + 438 pp (including index), £95 (hardback), ISBN 9780198855156
Warren Swain

Subversive Legal History: A Manifesto for the Future of Legal Education by Russel Sandberg, Oxford, Routledge, 2021, 6 p+234 pp., £109.44, ISBN 9780367191290 (hardback)
Susan Bartie

Jeppeson on Attainder in Virginia and New South Wales

Jennie Jeppesen has published "Tried and Attainted": Comparisons of the Application and Reception of the Common Law of Attaint in Virginia and New South Wales in Law and History Review:

Common Law, the shining cornerstone of the English Justice system, becomes a muddy pool when trying to uncover the ways in which it arrived into the early Virginian, Maryland, and early Eastern Australian colonies. This is particularly true for the common law of felony attainder. Attaint—social and legal death without physical death—had lasting implications on the question of legal personhood for the convicts transported from England to these colonies between 1614 and 1840. This article revisits the work done by Bruce Kercher, adding new primary research from the American colonies to enrich and challenge Kercher’s arguments. Expanding the primary source material used in the analysis gives us a deeper and more nuanced understanding about how attainder was received and applied in the colonies—in particular, in the American colonies—and a deeper understanding of outside forces that influenced property rights beyond that of the question of attainder. This article provides nuance to how common law was understood and applied by those with and without formal legal training in early developing colonial societies.

--Dan Ernst

Keyes on the Evolution of Legislative Drafting

John Mark Keyes, University of Ottawa, has posted Evolution of Legislative Drafting Style in English:

This paper reviews the evolution of legislative drafting style in English beginning in the Middle Ages in England through to modern reforms adopted by the national drafting offices of Canada, the UK, Australia and New Zealand. It concludes there is remarkable similarity in the styles adopted by these offices with the exception of some of the more debatable techniques proposed to enhance the readability of legislation.

--Dan Ernst

Byrne on Innovation in NSW Courts

Paula Jane Byrne has published, open access and online, in Law and History review, Innovation in the Courts: Ellis and Jeffery Hart Bent in New South Wales—an Analysis of Minute Books:

Close reading of documents produced by the early courts in New South Wales show two young men, formerly barristers at the Northern Assizes, innovating in their court rooms. Such innovation derived from their merchant background rather than the traditions of mercy or paternalism of the Assizes. In such innovations colonial agents were empowered and could shape the workings of the courts themselves. Minutes of the court show the impact of new kinds of elites generated by wealth built on slavery on the courts in the colonies and the subsequent flowering of subcultures.

--Dan Ernst

Kim on Australia's Procedure Act of 1854

David Kim, of the Australian law firm Banki Haddock Fiora, has posted “A Turbid Admixture”: The Long Shadow of the Common Law Procedure Act 1854, which appeared in the Adelaide Law Review:

The innovations of the pre-judicature period continue to haunt us. In the 1850s, in response to agitation for procedural fusion, reforms were introduced to allow for the grafting of equitable remedies onto common law courts and vice versa. This well-intentioned blending of jurisdiction spawned two novel remedies that are with us to this day: equitable damages and the lesser known 'common law injunction'. This article explores the Australian jurisprudence that has coalesced around the common law injunction and surveys the difficult theoretical problems that come to the fore when attempting to define its nature and scope.

--Dan Ernst

Weekend Roundup

• 
  Over at Balkinization, a terrific slate of contributors has been reflecting on Alison LaCroix's The Interbellum Constitution. Posts are now available by Aaron Hall, Evelyn Atkinson, Jane Manners, Simon Gilhooley, Anne Twitty, Anna Law, Rachel Shelden, Greg Ablavsky, and Jonathan Gienapp, with more to come.  

• Noah Rosenblum, NYU Law, discusses Securities and Exchange Commission v. Jarkesy in WilmerHale's podcast series. "Leveraging his background as a legal historian, Rosenblum provides historical context and explains how applying a traditional Constitutional interpretation to the case increases its complexity."
  

• The Securities and Exchange Commission held a 90th Anniversary Celebration, including remarks by Michael Beschloss and Joel Seligman.  The recording is here.
  

• George Garnett asks why constitutional history is coming back in fashion in university history departments in Britain (History Today).
  

• Learning to teach Milliken v. Bradley at “a two-week institute, 'Democracy in Education: A View from Detroit,' at the Walter P. Reuther Library” at Wayne State University (Chalkbeat).
  

• The Evolution of the U.S. Constitution: A Constitution Day Look Back and Forward, sponsored by the Historical Society of the New York Courts, et al.  It is a conversation with my former student, Tyler Rose Clemons, St. John’s University School of Law.  DRE
  

• The Comfort Fund of the University of Sydney’s law school, founded in July 1940 “to keep legal men and students in the Services in touch with the school and the legal professions, but the main object of the fund was to provide reading matter to those whose name was on the roll.”
  

• George Yin, UVA Law, on what Stanley Surrey would have made of the New Textualism (UVA Law).

• From In Custodia Legis: The Life and Trial of Anne Bonny.

• ICYMI: “Explore the history of politics and the Constitution in ‘A More or Less Perfect Union’” with Judge Douglas H. Ginsburg (NBC Montana).

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

Fitzgerald's "Sir Gerard Brennan" (and Clune's Review Thereof)

Jeffrey Fitzgerald has published  Sir Gerard Brennan: The Law's Good Servant (2024):

This is the first comprehensive biography of Sir Gerard Brennan, who is best known for his judgment in the Mabo case. It highlights the significant role Brennan played in the development of Australian law and in society more broadly. It traces his family background and life, education, and early career in Queensland before turning to the roles for which he is best known – inaugural president of the [Administrative Appeals Tribunal], judge of the Federal Court and High Court, and finally, Chief Justice of Australia. It provides detailed analysis of Brennan’s most significant judgments and compares his reasoning with that of other members of the court. In so doing, it provides valuable insight into his judicial methodology. The book explores how Brennan dealt with the sometimes competing demands of the strict application of legal precedent, and of the need to do justice in a changing social context.

The book also considers the way he sought to balance the compelling demands of his judicial duties and those he saw inherent in both his family responsibilities and his Catholic faith. The portrait which emerges does justice to Brennan the man, as well as Brennan the judge.

As Registrar at [University of Technology Sydney], the author worked closely with Brennan during the period he was Chancellor. He interviewed Brennan extensively, was given access to personal documents, and interviewed more than sixty of Brennan’s colleagues, associates, family members and friends. The resulting book is an important historical record of the life and times of a great Australian and will give readers a deeper understanding of the inner dynamics of the Australian court system.

William H. Clune, University of Wisconsin Law School, has posted a review in the guise of an interview of Fitzgerald:

This is a book review in interview format with me interviewing the book’s author, Jeffrey Fitzgerald. The book is a judicial biography of the famous and influential Australian jurist, Sir Gerard Brennan. Largely in chronological sequence, the book also identifies cross-cutting themes such as the evolution of his jurisprudence over time.

My questions are designed to highlight issues that have parallels in American law, thus introducing the book to American readers. A second focus is the interaction of law and society. Law and society issues pervade the book because it is a longitudinal account of the judge’s encounters with important legal issues that arose in a changing Australian society, his influence on that society, and the corresponding evolution of his jurisprudence. It is law as both a dependent and independent variable, a classic law and society formulation. The judge’s decisions and jurisprudence operate as “constitutive law,” reflecting both the influence of society on law and its influence on society while remaining relatively autonomous from both. Former U.S. Supreme Court Justice Steven Breyer’s recent exposition of judicial “pragmatism” is congruent with the jurisprudence of Justice Brennan.

The paper has eight parts with questions and answers as sub-parts: (1) the book and Brennan’s career; (2) constitutional law, federalism, separation of powers, judicial review; (3) civil rights, aboriginal people’s rights, racial discrimination, and other rights; (4) impact on other areas of law (e.g., torts, contracts, criminal law); (5) Brennan’s principles of jurisprudence (6) the High Court, its divisions, and politics (7) personal, family, and professional life; (8) conclusion: mutual influence of law and society.

--Dan Ernst

English Law, the Legal Profession, and Colonialism

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

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

TOC after the jump.

--Dan Ernst

Richardson's "Before Environmental Law"

Benjamin J. Richardson has published Before Environmental Law: A History of a Vanishing Continent (Hart/Bloomsbury):

This landmark book unveils the history of defending Australia's natural environment and examines the subject's legal and political contexts from the birth of the nation in 1901 until the advent of the so-called modern era of environmental regulation in the late 1960s. It rejects the mythology that Australia lacked environmental law before the late 1960s in revealing how many of today's environmental laws, from pollution control to nature conservation, emerged from precedents or events much earlier in the 20th century.

This history however reveals a discrepancy between lawmakers' greater efficacy to exploit rather than protect the environment, a discrepancy that grew as nature's backlash intensified in a rapidly degrading continent colonised to build the Australian nation. In exploring these dynamics, the book offers a rich tapestry of case studies illustrated with historic photographs that show the origins of Australia's environmental laws and how they borrowed from international precedents or furnished lessons for other nations.

Through its multi-disciplinary enquiry, the book offers scholars and students of environmental law, legal history and the environmental humanities a unique story about the failures and successes in the making of environmental law.

--Dan Ernst

Studies in the History of Tax Law

New from Hart Publishing: Studies in the History of Tax Law, Volume 11, edited by Peter Harris and Dominic de Cogan:

This book is a continuation of the prestigious series which is drawn from the papers of the biennial Cambridge Tax Law History Conference. The authors are a mix of academics and senior tax professionals from the judiciary and practice with representatives from 9 countries. The series continues to investigate current tax policy debates in an historical context. The papers fall within three basic categories:

1.  UK and Irish tax, looking at a variety of topics such as tax administration, cases and judges (Whitney, Singer, Viscount Radcliffe), the taxation of royal forests, the taxation of spirits, and income tax transition in the Irish Free State; 

2.  International taxation, with chapters on the role of international organisations (OECD, League of Nations) and on South Africa's early attempts to address double taxation (tax treaties); and 

3.  Non-UK tax systems, including chapters on the legacy of colonial influence (Dutch East Indies), early developments in China, New Zealand, and the USA, an influential Canadian report (Carter Commission), development of the GAAR in Scandanavia, and the receipt of Roman tax law in Europe.

--Dan Ernst.  Table of Contents after the jump.

Walsh on the Assignment of Choses in Action in England and Australia

Xavier P. Walsh, a recent honors graduate of Sydney Law School and, more recently, Tipstaff in the Equity Division of the Supreme Court of New South Wales, has posted Voluntary Assignments of Legal Choses in Action in England and Australia After the Judicature Act 1873, which appears in the Journal of Equity 17 (2023): 59:

The assignment of debts and other legal choses in action is commonplace. The required formalities for a voluntary equitable assignment, before and after the introduction of the Judicature Act 1873, however, have long been the subject of controversy. This article seeks to ascertain why England and Australia have apparently diverged in relation to the required formalities for voluntary equitable assignments of debts and other legal choses in action. This aim necessitates consideration of the principles relevant to voluntary equitable assignments prior to the introduction of the Judicature Act 1873. Consequently, this article will seek to establish that a voluntary equitable assignment may be effected orally in England, whereas signed writing is necessary in Australia today. After demonstrating that English and Australian law currently differ on this point, this article will attempt to explain why these jurisdictions have diverged, by reference to what is different about the English understanding of the law relating to voluntary assignments of debts and other legal choses in action.

--Dan Ernst

Essays on Nationality, Law and Belonging in Australia and New Zealand

We have word of the publication of Subjects and Aliens: Histories of Nationality, Law and Belonging in Australia and New Zealand, edited by Kate Bagnall and Peter Prince  (ANU Press 2023):

Subjects and Aliens confronts the problematic history of belonging in Australia and New Zealand. In both countries, race has often been more important than the law in determining who is considered ‘one of us’.

Each chapter in the collection highlights the lived experiences of people who negotiated laws and policies relating to nationality and citizenship rights in twentieth-century Australasia, including Chinese Australians enlisting during the First World War, Dalmatian gum-diggers turned farmers in New Zealand, Indians in 1920s Australia arguing for their citizenship rights, and Australian women who lost their nationality after marrying non-British subjects.

The book also considers how the legal belonging—and accompanying rights and protections—of First Nations people has been denied, despite the High Court of Australia’s recent assertion (in the landmark Love & Thoms case of 2020) that Aboriginal people have never been considered ‘aliens’ or ‘foreigners’ since 1788. The experiences of world-famous artist Albert Namatjira, and of those made to apply for ‘certificates of citizenship’ under Western Australian law, suggest otherwise.

Subjects and Aliens demonstrates how people who legally belonged were denied rights and protections as citizens through the actions of those who created, administered and interpreted the law across the twentieth century, and how the legal ramifications of those actions can still be felt today.

TOC after the jump.

–Dan Ernst

CFP: ANZLHS Conference

[The website for the 42nd Annual Conference of the ANZLHS is now online.  Here's the CFP.  DRE]

The Australian and New Zealand Law and History Society invites abstract submissions for its 42nd Annual Conference. Personal attendance is warmly encouraged, but an online component will be available.  The theme for 2023 is Intersectionality and Legal Identities.  Abstracts should be no more than 300 words and should be accompanied by a brief statement of the author's academic affiliation and/or CV. Please submit abstracts via email: anzlhs2023@usq.edu.au

Abstracts should be submitted by 15 August 2023, and notification of acceptance will be sent in late September.  A PDF of the Call for Papers is available for download and circulation here. Conference registration details will be available via the 2023 ANZLHS Annual Conference website in the coming months.

Spagnolo on Victoria's Torrens Act

Lisa Spagnolo, Macquarie Law School, has posted A Conceptual Framework: What the Forgotten History of the Victorian Torrens Legislation Tells Us about Priority Disputes Involving Paramount Interests, which appeared in the Sydney Law Review:

The history of the Transfer of Land Act 1958 (Vic) can tell us much about exceptions to indefeasibility known as ‘paramount interests’. Current case law suggests these interests do not enjoy automatic priority in Victoria. Instead, once a paramount interest is established, the registered interest is effectively stripped of indefeasibility and a priority dispute ensues, with the outcome determined under general law priority rules. In this article I analyse Victorian legislative history to argue paramount interests were legislatively intended to enjoy ipso facto priority over registered interests. I develop a historically based conceptual policy framework to support future purposive interpretations of the Victorian paramount interest provision (s 42(2) of the Act). My insights demonstrate how the paramount interest exception was intended to operate in Victoria, how competing legislative aims were balanced within it, as well as the way in which it interacts with other exceptions to elucidate how priority operates for exceptions to indefeasibility more broadly. Moreover, I outline the vulnerability of other jurisdictions to case law outcomes similar to that which has arisen in Victoria. A deeper understanding of the Victorian legislative history can help prevent a similar folly in those jurisdictions.

--Dan Ernst

Weekend Roundup

• 
  The OAH is sponsoring the webinar Rethinking Our Historical Narrative: Native American and Indigenous History.  “We invite you to join us on Tuesday, July 19, at 6pm ET, as we look at recent events, such as this summer’s SCOTUS decision in Oklahoma v. Castro-Huerta, issues surrounding federal boarding schools, and the fight against the Indian Child Welfare Act”  Philip J. Deloria, Harvard University, hosts.  The guests are Brooke Bauer, University of Tennessee Knoxville, Maggie Blackhawk, New York University, Kasey Keeler, University of Wisconsin, and Derek Taira, University of Hawaii.  Register here.
  

• A further report on that NSF-funded grant to digitize habeas corpus petitions at the University of Nebraska–Lincoln’s Digital Legal Research Lab, with principal investigators Katrina Jagodinsky and William G. Thomas.  This story stresses the participation of undergraduates at other colleges.
  

•  In the June 2022 issue of the Journal of American History, "Richard Bell shows that kidnappers stalked free-soil cities in the early national United States with startlingly frequency and impunity, developing custom-designed techniques to lure away poorly educated boys and girls,” and "Joanna Cohen explores the claims for lost and destroyed property made by victims of the 1863 New York City draft riots."
  

• The Historical Society of the New York Courts and Woodlawn Cemetery Conservancy’s recording of John Oller’s lecture on the early corporate bar in New York City and cops and robbers at the turn of the twentieth century, treated in his books, White Shoe (2019) and Rogues’ Gallery (2021), is now available as a podcast.
  

• "Fisk University John Hope and Aurelia E. Franklin Library has received $1.6 million from the Mellon Foundation to support the implementation of a new digital platform for the Julius Rosenwald Fund Collection."  The accompanying picture alone is worth the click.)
  

• Mabo @ 30: A notice of the National Library of Australia Exhibit.
  

•  Bill Baird remembers the events that produced Eisenstadt v. Baird (BU Today).

•  “The Smithsonian Institution’s National Museum of American History Will Host A Webinar To Assist Applicants in Applying for Federal Jobs.”  The 90-minute session It is “designed to teach applicants how to successfully complete a federal job application on July 26th at 4PM EST. Register here.  For questions, contact Alexandra M. Lord at lorda@si.edu or 202-633-0885.

• More legal historians on Dobbs and its aftermath: Brad Snyder on why Brown is a faulty analogy for Dobbs (CNN).  Kate Masur on what slavery and antislavery in the 1850s can tells us about abortion and anti-abortion activism in the states today  (WaPo). Jack Rakove, Randy Barnett and others on how the Supreme Court is shaping the United States (BBC).  Sundry historians quoted in this story on how the Supreme Court uses history (CSM).  Buffalo Law weighs in (UBNow).
  

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

Swain and Fairweather on Usury Law in New South Wales

Warren Swain and Karen Fairweather, University of Auckland, have posted To Your Marrowbones All: Loan Transactions and the Law in 19th Century New South Wales:

Economic growth in the early Australian colony was fuelled by credit. The boom ended in a slump in the 1840s. By this time questions had started to be raised about how credit should be regulated in the colony. In England, the prohibitions on usury which governed loan transactions were not completely abolished until 1854. The application of the English usury laws in the colony was controversial. Some favoured regulating interest rates whilst others saw it as likely to discourage investment. Usury provides a good example of a wider debate about the extent to which English law ought to apply in the different conditions of the early colony of New South Wales.

--Dan Ernst