Cahn, Eichner, and Ziegler on Parental Consent and Minors' Rights

Naomi Cahn, University of Virginia School of Law, Maxine Eichner, University of North Carolina School of Law, and Mary E. Ziegler, University of California, Davis School of Law, have posted "For Their Benefit": The Lost History of Parental Consent and Minors' Rights:

The principle of parental involvement in children’s lives has achieved surprising consensus across blue and red states. Meanwhile, the goal of children’s wellbeing has become a touchstone for legal reform efforts across a variety of domains. The apparent embrace of both the goal of children’s wellbeing and parents’ right to be involved conceal deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions.

Drawing on archival material housed at six different universities, we make sense of present-day conflicts about parental approval by revisiting the long legal history of parental involvement, from early common-law cases to struggles of the civil rights era. We show that contrary to widespread assumptions, from the very beginning, strict requirements of parental involvement were compartmentalized to particular areas and inconsistently applied in others. Further, what is often portrayed as a relatively recent, evolving consensus in favor of using children’s wellbeing rather than parental involvement as the guiding principle in the regulation of children is instead a continuation of a longstanding tradition. At common law, we demonstrate, in determining whether a minor could bind themselves to an agreement without parental involvement, courts often asked whether an agreement was beneficial to the child’s interests (and therefore either voidable or binding, depending on the judge or jurisdiction) or prejudicial to the child’s interests and therefore void.

Building on a rich literature on child wellbeing, we then use lessons from this history to construct a framework for determining when legislators and judges today should require parental involvement and when minors should be allowed to make their own decisions. We begin with a presumption, drawn from the lessons of common law, that parental involvement should be required for most types of important decisions. Yet decision-makers should impose exceptions to the general rule of parental involvement when: (1) parental involvement requirements impede access to care or resources critical to minors’ wellbeing; or (2) the decision at issue is integral to minors’ autonomy over their bodies and their futures. We consider how this framework would address four current controversies relating to minors: (1) abortion and abortion-related travel; (2) gender-affirming medical care; (3) access to social media; and (4) mental-health treatment. Our framework, we hope, will be faithful to the basic principles that animated the common law and better able to illuminate when parental involvement is beneficial—and when it may have harmful consequences for the minors it is supposed to protect. 

--Dan Ernst 

Pimm-Smith on the Poor Law and the Adoption Act

Rachel Elizabeth Pimm-Smith, Warwick Law School, has published, online and open access, From the Poor Law to the Adoption of Children Act 1926: Another Punishment for Being Poor in Law and History Review:

This article makes the case for recognizing the connection between the Poor Law and the Adoption of Children Act 1926. A child who received welfare under the Poor Law could be de facto adopted by the guardians as early as the late-nineteenth century. Very little is known about this type of de facto adoption which is a significant gap because over 10,000 children were adopted in this way, and it provided the basis for latter de jure adoption. This article initiates the process of filling this gap by exploring archival resources to determine why children were de facto adopted under the Poor Law before the introduction of de jure adoption in 1926. Understanding this form of de facto adoption is important because it was justified as a mechanism of child protection, but this article contends it was another form of punishment designed for families experiencing material deprivation which directly influenced the law on de jure adoption in England. By establishing the connection between the 1926 Act and its Poor Law predecessor, the de jure adoption framework can be contextualized within its wider social history which is embedded in class conflict and distrust toward impoverished families.

--Dan Ernst

Savarese on Parents' Habeas Suits in Late 19th-Century United States

Laura Savarese, Michigan State University, has posted The Origins of Family Rights and Family Regulation: A Dual Legal History, which is forthcoming in the Stanford Law Review:

The history of the state’s intrusions on the rights of marginalized parents has become central to today’s critical accounts of American family law and family courts, and rightly so. Missing from the conversation, however, is a full account of how those rights first entered the law, and how the state assumed its now-familiar, though often unfulfilled, obligation to afford due process to the parents and children it separates.

This Article is the first to locate that transformation in a now-forgotten wave of habeas litigation brought by parents seeking their children’s return from orphan asylums and juvenile reformatories—the institutions that comprised the nascent child welfare and juvenile justice systems in the late nineteenth century. Those conflicts are visible in archival sources and a set of state court cases that have not received systematic study. Drawing on those sources, this Article argues that modern understandings of the right to family integrity were forged through legal challenges to the state’s growing power to remove children from their parents, in the name of child welfare, from the Civil War through the Progressive Era. Parents, as habeas petitioners, pushed courts to recognize and enforce their rights to notice and an opportunity to be heard, to draw a distinction between child neglect and family poverty, and to affirm parents’ right to regain custody after they remedied the reasons for children’s removal—establishing the core legal principles that delimit the state’s power today.

Recapturing the story of resistance to the family regulation system, at its inception, offers insights for today’s efforts to transform or dismantle that system, and deepens our understanding of the genesis and function of constitutional family rights. Critically, recovering this line of cases provides a more complete account of the history and tradition in which substantive due process protections for family autonomy are rooted. This account also lends support to more ambitious conceptions of the right to family integrity, advocated today, as a tool for expanding legal protections against family separations and terminations of parental rights, as well as affirmative entitlements to state assistance for childrearing. At the same time, the records of parents’ legal challenges offer a warning about the limits of procedural rights and litigation as means of advancing parents and children’s interests, absent a more radical redistribution of public resources to meet families’ material needs.

--Dan Ernst

Michigan Legal History Workshop

[Our friends at Michigan Law have sent us the lineup in its Legal History Workshop in the upcoming semester.  DRE]

February 5.  Session 3. Naomi Lamoreaux & Rebecca Eisenberg, University of Michigan Law School

What Administrative Agencies Can Do that Courts Cannot: Lessons from the Patent Office’s Handling of Interferences, 1836-1940

February 12.  Session 4. Heather Menefee, Northwestern University, Department of History

From “Loyal” to “Legitimate”: Racial Definitions of Political Identity during Dakota Tribal Reorganization, 1886-1999

February 19.  Session 5. Sanne Ravensbergen, University of Michigan, Department of History

The Hybrid Uniform of the Jaksa: Prosecutors in Nineteenth-Century Colonial Indonesia

February 26. Session 6. Aaron Hall, University of Minnesota, Department of History

The First Constitutional Lesson: Learning to Follow the Founding in Antebellum America

March 12.  Session 7. Beth Lew-Williams, Princeton University, Department of History

“John Doe Chinaman:” Law and Race in the American West

March 19.  Session 8. Nathan Perl-Rosenthal, University of Southern California, Department of History

Maritime Prize Law and the Making and Unmaking of Empires, ca. 1689-1916

March 26.  Session 9. Megan Ming Francis, University of Washington, Department of Political Science

The Price of Civil Rights: Philanthropy and Legal Mobilization

April 2. Session 10. Justene Hill Edwards, University of Virginia, Department of History

Finances of the Freedmen: The Expansion and Plunder of the Freedman’s Bank, 1866-1867

April 9.  Session 11. Ivón Padilla-Rodriguez, University of Illinois, Chicago, Department of History

"In Consideration of Humanity:" Policing Mexican Child Refugees in the Early Twentieth Century United States

April 16.  Session 12. Sara Mayeux, Vanderbilt University, Law School

“Drug Money” in Legal, Political, and Cultural History

Tanenhaus on the Many Histories of Juvenile Justice

A preprint of David S. Tanenhaus’s The Many Histories of Juvenile Justice, forthcoming in Crime and Justice: A Review of Research, is now available.  Here is the abstract:

A new framework and method for understanding the history of American juvenile justice divides this history into four periods and contextualizes the most innovative scholarship from each to demonstrate why it matters, as is the case with any subject, who writes the history, when they did so, and how.  During the first period (c. 1899 to 1940), Lou Xuexi (known as Herbert H. Lou to English-language audiences) chronicled the creation, legitimation, and spread of the juvenile court idea across the United States and much of the world.  He became the field’s Tocqueville.  The next period (c. 1940 to 1969) witnessed a transnational reimagining of what constituted juvenile justice and a reconsideration of its history, including the publication of Anthony Platt’s The Child Savers.  During the third period (c. 1970 to 2000), the field became more narrowly focused on the United States.  Scholars created historical narratives that addressed the system’s differential treatment of females and racial minorities, and whether it was equipped to handle the cases of modern adolescents.  In the fourth period (c. 2001 to 2024), scholarship focused on restoring hope and raising expectations, and viewed this history through the prism of carceral studies.

--Dan Ernst

ABF Legal History Workshop

[We have the following announcement from our friends at the American Bar Foundation.  For further information, please contact Sophie Kofman at skofman [at] abfn.org.  DRE]

The ABF Chicago-area Legal History Workshop will be held periodically on Wednesday evenings (see dates below) at 4:00 pm (except where otherwise noted) at the 4th Floor Woods Conference Room of the ABF Offices (420 E. Superior St.).

Wed. Sept. 4 (4:00pm start) – Joanna Grisinger (Northwestern University)

 “Challenging the Establishment at half fare”: The Civil Aeronautics Board and Youth Air Travel

Joanna Grisinger is an Associate Professor of Instruction at the Center for Legal Studies at Northwestern University. Her current research explores public interest participation in administrative decision making. Grisinger’s book manuscript examines airline regulation as a site for mobilization around issues of race and apartheid, disability, consumer rights, and the environment. 

Wed. Sept. 25 (4:00 pm start) – Anders Walker (St. Louis University)

Wed. Oct. 9 (4:30pm start) – Amy Stanley (University of Chicago)

Wed. Nov. 13 (4 pm start) – Brett Gadsden (Northwestern University)

Gronningsater, "The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom"

New from the University of Pennsylvania Press: The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom, by Sarah L. H. Gronningsater (University of Pennsylvania). A description from the Press:

The Rising Generation chronicles the long history of emancipation in the United States through the cradle-to-grave experiences of a generation of black New Yorkers. Born into precarious freedom after the American Revolution and reaching adulthood in the lead-up to the Civil War, this remarkable generation ultimately played an outsized role in political and legal conflicts over slavery’s future, influencing both the nation’s path to the Civil War and changes to the US Constitution.

Through exhaustive research in archives across New York State, where the largest enslaved population in the North resided at the time of the American Revolution, Sarah L. H. Gronningsater begins by exploring how English colonial laws shaped late eighteenth-century gradual abolition acts that freed children born to enslaved mothers. The boys and girls affected by these laws were born into a quasi-free legal status. They were technically not enslaved but were nonetheless required to labor as servants until they reached adulthood. Parents, teachers, and mentors of these “children of gradual abolition” found multiple ways to protect and nurture the boys and girls in their midst. They supported and founded schools, formed ties with white lawyers and abolitionists, petitioned local and state officials for better laws, guarded against kidnapping and cruelty, and shaped New York’s evolving identity as a free state. Black fathers used their votes during annual state elections in the early 1800s to influence legislative antislavery efforts. After many but not all black men in the state were disfranchised by a race-based property requirement in 1822, black citizens across New York organized to regain equal suffrage and to expand and protect other crucial, non-gendered features of state citizenship. Women and children were critical participants in these efforts.

Gronningsater shows how, as the children of gradual abolition reached adulthood, they took the lessons of their youth into midcentury campaigns for legal equality, political inclusion, equitable common school education, and the expansion of freedom across the nation.

A selection of advance praise:

"This book is an extraordinary accomplishment of research and writing. Sarah L. H. Gronningsater has immersed herself in countless local archives to give us an entirely new picture of northern black politics in its many forms. With clarity and empathy, The Rising Generation shows how black children, women, and men developed organizing savvy and legal acumen, supported fugitive slaves, demanded access to schools and the courts, and made their voices heard in national politics."—Kate Masur

"The Rising Generation is a book about hope. Meticulously researched and beautifully crafted, it recasts the history of emancipation by foregrounding the activism of ordinary people, particularly black Americans. That past has profound resonance now. By revealing what civic engagement accomplished in the past, this remarkable book also opens up new possibilities today."—Laura F. Edwards

More information is available here.

-- Karen Tani

Spitzer on Weapon Restrictions for Minors

Bruen as the Legal Historians' Full Employment Act.  Robert J. Spitzer, SUNY Cortland, has posted  Historical Weapons Restrictions on Minors, which is forthcoming in the Rutgers Law Review:

Since the Supreme Court’s ruling in 2022 that recast the basis for judging the constitutionality of contemporary gun laws according to the existence of historical analogs, all manner of laws have been subject to court challenge, including those that restrict gun access to those under the age of twenty-one. To date, federal courts have split on this question. Given this new, history-based standard for judging the constitutionality of current weapons laws, this article examines the historical record pertaining to how the age of majority was defined in our past and how that pertains to the history of laws that restricted minors’ access to firearms and other weapons. This article offers the most extensive assessment of state laws and local ordinances from the eighteenth and nineteenth centuries to be found to date. In addition, it includes a new and extensive excavation of a wide range of college and university codes in the eighteenth and nineteenth centuries that limited or barred students from having weapons from that time period, the nature and extent to which has not been identified or reported before. All of this information supports the conclusion that the broadly accepted age of majority during this time period was twenty-one.

--Dan Ernst

Weekend Roundup

• From Process, the blog of the Organization of American Historians: "The American Public’s Role in Financial Regulation," by Christopher Shaw.

• Via Nursing Clio: An interview with Jesse Olszynko-Gryn, author of A Woman’s Right to Know: Pregnancy Testing in Twentieth-Century Britain.
  

• 
  Paula J. Giddings will discuss “The Prescient Life of Ida B. Wells,” “a crusading journalist and pioneer in the fights for women’s suffrage and against segregation and lynchings” in conversation with FDR Library Director William Harris, in the Library’s Henry A. Wallace Center at 6:00 p.m. ET on Tuesday, March 26, 2024, and streaming on YouTube and Facebook.  Register here.
  

• Congratulations to John Cairns, University of Edinburgh, upon the announcement that he is to receive an honorary doctorate from the University of Glasgow.
  

• Heikki Pihlajamäki, Professor of Comparative Legal History at the University of Helsinki, has “won the Gad Rausing Prize for Outstanding Humanities Research. Pihlajamäki was awarded the prize, worth 1.5 million Swedish krona.”  More.
  

• Frances M. Clarke, University of Sydney, is the first Australian to win the Gilder Lehrman Lincoln Prize, which “rewards the finest scholarly work published in the prior year in English on Abraham Lincoln, the American Civil War soldier, or the American Civil War era.” She and her coauthor, Rebecca Jo Plant, University of California, San Diego, won the prize for Of Age: Boy Soldiers and Military Power in the Civil War Era (Oxford University Press).
  

• Reshaping American Life: Today’s Supreme Court in Historical Context, and its Potential Impact on our Future, a discussion/debate between Berkeley Law School Dean Erwin Chemerinsky and Case Western Reserve Law Professor Jonathan Adler, moderated by California Supreme Court Justice Carol Corrigan, will take place on Tuesday, April 23, 2024, 12:15 p.m. (PT) / 3:15 p.m. (ET).  It is to last 75 minutes and will take place in-person and virtually.  Register here.
  

• The University of Edinburgh Press seeks proposals for its new book series, New Approaches to Ancient Greek Institutional History.  The series editors are Mirko Canevaro, Edward Harris, and  David Lewis.
  

• ICYMI: "Maricopa County Honors Public Defenders and Landmark Legal Victories [such as Gideon v. Wainwright] During 'Public Defense Recognition Week'” (Hoodline).  "How Virginia Used Segregation Law to Erase Native Americans" (Time--the new home of Made by History).
  

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

"100 Years of the Infanticide Act"

100 Years of the Infanticide Act: Legacy, Impact and Future Directions, edited by Karen Brennan and Emma Milne, has been published by Hart/Bloomsbury:

This book provides the first comprehensive and detailed analysis of the Infanticide Act and its impact in England and Wales and around the world.

It is 100 years since an Infanticide Act was first passed in England and Wales. The statute, re-enacted in 1938, allows for leniency to be given to women who kill their infants within the first year of life. This legislation is unique and controversial: it creates a specific offence and defence that is available only to women who kill their biological infants. Men and other carers are not able to avail of the special mitigation provided by the Act, nor are women who kill older children.

The collection brings together leading experts in the field to offer important insights into the history of the law, how it works today, the impact and legacy of the statute and potential futures of infanticide laws around the world.

Contributors consider the Act in practice in England and Wales, the ways it has been portrayed in the British media and justifications for and criticisms of the provision of special treatment for women who kill their infants within a year of birth.

It also looks at the criminal justice responses to infanticide in other jurisdictions, such as Australia, Ireland, Sweden and the United States of America.

--Dan Ernst.  TOC after the jump.

AJLH: 63:1

The American Journal for Legal History 63:1 (March 2023) is now fully published on line:

The best answer? Justice Nelson’s concurrence in Dred Scott v. Sandford
William B Meyer

‘I Laid Earl and Clementine on a Chair and Whipped Them’: Child Murder and Criminal Justice in the Jim Crow South
Jeffrey S Adler

Limping Marriages: Race, Class, and the Rise of Domicile-Based Divorce Jurisdiction in the British Empire
Priyasha Saksena

Book Reviews

Tamika Y.  Nunley.  The Demands of Justice: Enslaved Women, Capital Crime, and Clemency in Early Virginia (Chapel Hill: University of North Carolina Press, 2023), pp  243, $27.95 (paperback). ISBN 978-1-4696-7312-7

Terri L Snyder

Russell Sandberg, A Historical Introduction to English Law: Genesis of the Common Law
( Cambridge:  Cambridge University Press,  2023), pp.  xiii +280. £90 (hardcover). ISBN 9781107090583

William Eves

 --Dan Ernst

Katz on Religion and Family Policing

Elizabeth D. Katz, University of Florida Levin College of Law, has posted Fostering Faith: Religion in the History of Family Policing, which is forthcoming in the Fordham Law Review:

Each year in the United States, approximately 700,000 children live in foster care. Many of these children are placed in religiously oriented homes recruited and overseen by faith-based agencies (FBAs). This arrangement—as well as the scope and operation of child welfare services more broadly—is at a crucial moment of reckoning. Scholars and advocates focused on children’s rights and family integrity maintain that the child welfare system, increasingly termed the “family policing system,” harms children, families, and communities through unnecessary and racist child removal that is partly motivated by perverse financial incentives. Some call for abolition. Meanwhile, in a largely separate conversation, discussants focused on clashes between religious liberty rights and antidiscrimination laws spar over the legality and appropriateness of FBA involvement in fostering children because FBAs may exclude or provide ill-fitting services to LGBTQ individuals and religious minorities.

This Article excavates the persistent involvement of religious organizations in child placements in United States history to provide crucial missing context and valuable lessons for ongoing reform efforts. People and groups motivated by religion have participated in housing poor, orphaned, and otherwise dependent children since the colonial period, gradually securing laws to ensure public funding for their private organizations and to safeguard control over coreligionist youth. Though these services have benefitted many children in the absence of satisfactory public alternatives, they have also inflamed interfaith controversies and left children from minority religious and racial groups with unequal and inadequate care. Criminal law innovations, including the enactment of child abuse laws and the creation of juvenile courts, reinforced religious organizations’ involvement. As the preferred methods for child placement evolved, faith-based providers campaigned in legislatures and the press to preserve their power and control, slowing reforms. This Article’s account supports calls for change by emphasizing how the modern system developed through ad hoc and contingent changes that routinely prioritized cost concerns, crime reduction, and religious groups’ interests over children’s wellbeing. 

--Dan Ernst

Children and the Law: A Conference in Honor of Michael Grossberg

We have the following announcement, regarding a November 10, 2022, pre-conference convening at this year's meeting of the American Society for Legal History:

Children and the Law: A Conference in Honor of Michael Grossberg

Mini-Conference Schedule

9:30am “Saving Our Kids”

Opening Remarks by Laura Edwards (Princeton University) & Dirk Hartog (Princeton University)

10-11:30am “Who Gets the Child?”

Comment by Steven Mintz (University of Texas, Austin)

Chelsea Chamberlain (University of Pennsylvania), "Perpetual Children": Mental Disability, Institutional Commitment, and the Intimate State

Naama Maor (Tel Aviv University), “We Cannot be Hoodwinked into Making Paroles”: Delinquent Children, State Institutions, and the Boundaries of Juvenile Justice

Kristen McCabe Lashua (Vanguard University of Southern California), “If the boy’s word is to be taken”: Child Testimonies in Early Modern England

Nathan Stenberg (University of Minnesota), “A Peculiar Case”: Disability, Performance, and the Legal (De)Construction of Institutionalized Children's Personhood at the Pennhurst State School & Hospital

11:45-12:30 Lunch

12:45-2:15pm “A Protected Childhood”

Comment by Barbara Welke (University of Minnesota)

Wangui Muigai (Brandeis University), The Tenth Crusade: Baby-Saving, Racial Violence, and the NAACP

Yukako Otori (Tokyo University of Foreign Studies), Esther Kaplan's Saga: From an Undesirable Immigrant to an Undeportable "Child"

Ivón Padilla-Rodríguez (University of Illinois Chicago), The Double Removal of Migrant Youth: Late-Twentieth Century Data Collection and Education Law as U.S. Immigration Deterrence

Shani Roper (University of the West Indies), Sitting at Intersections: Institutionalized Children and the Law in Colonial Jamaica 1904 to 1950

Doris Morgan Rueda (University of Nevada, Las Vegas), “The Boy is Large for His Age”: Making Age in Arizona’s Early Juvenile Court, 1907-1920

2:30-4pm “Legal Rights for Children?”

Comment by David Tanenhaus (University of Nevada, Las Vegas)

Tera Agyepong (DePaul University & American Bar Foundation), Constructing Race and Gendered Delinquency in the Juvenile Justice System

Juandrea Bates (Winona State University), Bringing Child Protection Home: Juveniles as Initiators of Child Protection Suits in Buenos Aires 1890-1930

Emily Prifogle (University of Michigan), Rural Students and a “Right” to Local Schools

Kathryn Schumaker (University of Oklahoma), Desegregating Discipline: Corporal Punishment and Children's Rights in the Classroom in the 1970s

4:15pm Afterward

Introduction of Michael Grossberg by Ajay Mehrotra (American Bar Foundation and Northwestern University) & Bengt Sandin (Linköping University in Sweden)

Closing Remarks by Michael Grossberg

5pm Cocktail Reception

 

-- Karen Tani

Ford and Hinchy in Legal Histories of Empire Symposium

[We have the following announcement.  DRE}

Legal Histories of Empire: Second Symposium

Join us for the second of several symposia planned for 2020 and 2021 for Legal Histories of Empire.

Our speakers:

Lisa Ford: 'The King's Colonial Peace: Variable subjecthood and the transformation of empire'

This paper is drawn from my forthcoming book, The King's Peace: Empire and Order in the British Empire. The book uses colonial peacekeeping as a lens through which to examine the shifting parameters of crown prerogative in Empire in the Age of Revolutions. This paper will argue that the legal vulnerability of (and often threats to order posed by) a diverse array of subjects - formerly French Catholics in Quebec, Caribbean slaves and NSW convicts - both prompted and justified the unravelling of the very idea of the freeborn Englishman that had been mobilised by protestant Britons in pre-revolutionary America.

Lisa Ford is Professor of History at the University of New South Wales, Australia. Her major publications include Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (2010) which won the Littleton-Griswold Prize (American Historical Association); the Thomas J. Wilson Prize (Harvard University Press); and the Premiers History Award (NSW). She is also co-author of Rage for Order: The British Empire and the Origins of International Law, 1800-1850 (co-authored with Lauren Benton, 2016) and author of The King’s Peace, which will be published by Harvard later this year. Ford is currently leading a collaborative project funded by the Australian Research Council exploring the role of commissions of inquiry sent throughout the British Empire in the 1820s on which subject she hopes to lead author a book manuscript this year. She also holds a four-year ARC Future Fellowship, during which she will explore the changing use of martial law in the British Empire from the late eighteenth century until 1865.

Jessica Hinchy: 'Child Removal and the Colonial Governance of the Family: Hijra and "Criminal Tribe" Households in North India, c. 1865-1900'

Historians have primarily examined colonial child removal projects in settler colonial contexts. Yet from 1865, the colonial government in north India forcibly removed children from criminalised communities. Child separation began in the households of gender non-conforming people labelled ‘eunuchs,’ particularly Hijras, and eventually extended to socially marginalised people designated as ‘criminal tribes,’ especially Sansiyas. First, what does a comparison of these child removal schemes tell us about the colonial governance of the family? Patrilineal, conjugal and reproductive household models marginalised Hijras and Sansiyas in differing ways, while the category of ‘child’ was contingently defined. Child separation was attempted to varying ends, including both elimination and assimilation. Yet often, the colonial state could not sustain such intensified forms of intimate governance in the face of resistance from households. Nor could officials simply determine removed children’s futures. Second, what does child removal suggest about the making of colonial law? When children were initially removed from Hijra and Sansiya households, officials admitted that ‘the law may have been somewhat strained,’ since existing laws did not provide police or magistrates with legal powers to separate these children. The Sansiya child removal project, for instance, prompted debates about colonial legal exceptions and the ‘legality’ of the colonial state’s practices among colonial officials and Indian and European non-officials.

Jessica Hinchy is an Assistant Professor of History at Nanyang Technological University in Singapore. She researches the history of gender, sexuality, households and family in colonial north India. In 2019, Cambridge University Press published her first monograph, Governing Gender and Sexuality in Colonial India: The Hijra, c. 1850-1900. Her research has also appeared in Modern Asian Studies, Gender & History and Asian Studies Review, among other journals.

The event will take place by zoom on Friday 5 March (or Thursday 4 March, depending on your timezone - see below). Please register here (via Eventbrite) to attend.

Timezones:
Sydney @ 12.30 pm on 5 March
Singapore @ 9.30 am on 5 March
Auckland @ 2.30 pm on 5 March
New Delhi @ 7.00 am on 5 March
London/Dublin @ 1.30 am on 5 March
Nairobi @ 4.30 am on 5 March
Vancouver @ 5.30 pm on 4 March
New Haven/Toronto @ 8.30 pm on 4 March

Tulsa Law Review's Annual Book Review Issue

Tulsa Law Review 55:2 (2020), a book review issue, includes essays of interest to legal historians:

Reassessing the Historical Foundations of Originalism, by Lee Borocz-Johnson

The Second Creation: Fixing the American Constitution in the Founding Era, by Jonathan Gienapp

Forging the American Nation, 1787-1791: James Madison and the Federalist Revolution, by Shlomo Slonim

Triangulating Law and Political-Economic Development, by Jonathan Chausovsky

The Contract Clause: A Constitutional History, by James Ely Jr.

Child Labor in America: The Epic Struggle to Protect Children, by John A. Fliter

Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic, by Eric Lomazoff

Popular Legitimacy: A Tenuous Proposition, by Emily Pears

Building a Revolutionary State: The Legal Transformation of New York, 1776-1783, by Howard Pashman

We Have Not a Government: The Articles of Confederation and the Road to the Constitution, by George Van Cleve

The Many Faces of American Captivity and Its Legal Matrix: A Review Essay, by Christian Pinnen

University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of the Civil War, by Alfred L. Brophy

Supreme Injustice: Slavery in the Nation's Highest Court, by Paul Finkelman

Borderlands of Slavery: The Struggle over Captivity and Peonage in the American Southwest, by William Kiser

Free Speech Idealism, by Timothy Zick

The Taming of Free Speech: America's Civil Liberties Compromise, by Laura Weinrib

Speak Freely: Why Universities Must Defend Free Speech, by Keith E. Whittington
 
Who Is Responsible for Presidential Supremacy? by Kathleen Tipler

Supreme Court Expansion of Presidential Power: Unconstitutional Leanings, by Louis Fisher

President Obama: Constitutional Aspirations and Executive Actions, by Louis Fisher

Reclaiming Accountability: Transparence, Executive Power, and the U.S. Constitution, by Heidi Kitrosser

--Dan Ernst

Suddler, "Presumed Criminal"

We missed this one when New York University Press released it last July: Presumed Criminal
Black Youth and the Justice System in Postwar New York, by Carl Suddler (Emory University). A description from the Press:

A stark disparity exists between black and white youth experiences in the justice system today. Black youths are perceived to be older and less innocent than their white peers. When it comes to incarceration, race trumps class, and even as black youths articulate their own experiences with carceral authorities, many Americans remain surprised by the inequalities they continue to endure. In this revealing book, Carl Suddler brings to light a much longer history of the policies and strategies that tethered the lives of black youths to the justice system indefinitely.

The criminalization of black youth is inseparable from its racialized origins. In the mid-twentieth century, the United States justice system began to focus on punishment, rather than rehabilitation. By the time the federal government began to address the issue of juvenile delinquency, the juvenile justice system shifted its priorities from saving delinquent youth to purely controlling crime, and black teens bore the brunt of the transition.

In New York City, increased state surveillance of predominantly black communities compounded arrest rates during the post–World War II period, providing justification for tough-on-crime policies. Questionable police practices, like stop-and-frisk, combined with media sensationalism, cemented the belief that black youth were the primary cause for concern. Even before the War on Crime, the stakes were clear: race would continue to be the crucial determinant in American notions of crime and delinquency, and black youths condemned with a stigma of criminality would continue to confront the overwhelming power of the state.

A few blurbs:

"A timely and critically important origins story of how black youth became over-policed and under-protected in one of the most liberal cities in America. They were victims of institutional racism and an increasingly hostile police force that refused to protect their right to protest and organize for racial justice. Young people’s bitter awakening to racial consciousness at the end of a police baton is, as Carl Suddler skillfully shows, the starting point for understanding why stop-and-frisk first made its debut in New York City over a half-century ago." ~ Khalil Gibran Muhammad

"In this powerful, timely, and deeply unsettling recovery of America’s criminal justice past, Suddler shines vital new light on the present. By brilliantly revealing the nation’s postwar effort to deal with troubled young people more humanely, this book forces us to face the extent to which the presumption of black criminality utterly undermined that effort and thereafter ensured that black boys and girls would forever be ensnared in a fundamentally unjust juvenile justice system." ~ Heather Ann Thompson

More information is available here.

-- Karen Tani

Schrag's "Baby Jails"

My Georgetown Law colleague Philip G. Schrag, has just published Baby Jails The Fight to End the Incarceration of Refugee Children in America (University of California Press) a history of the Flores decision:

For decades, advocates for refugee children and families have fought to end the U.S. government’s practice of jailing children and families for months, or even years, until overburdened immigration courts could rule on their claims for asylum. Baby Jails is the history of that legal and political struggle. Philip G. Schrag, the director of Georgetown University’s asylum law clinic, takes readers through thirty years of conflict over which refugee advocates resisted the detention of migrant children. The saga began during the Reagan administration when 15-year-old Jenny Lisette Flores languished in a Los Angeles motel that the government had turned into a makeshift jail by draining the swimming pool, barring the windows, and surrounding the building with barbed wire. What became known as the Flores Settlement Agreement was still at issue years later, when the Trump administration resorted to the forced separation of families after the courts would not allow long-term jailing of the children. Schrag provides recommendations for the reform of a system that has brought anguish and trauma to thousands of parents and children. Provocative and timely, Baby Jails exposes the ongoing struggle between the U.S. government and immigrant advocates over the duration and conditions of confinement of children who seek safety in America.

--Dan Ernst

Katz on child support

Elizabeth D. Katz (Washington University in St. Louis) has published the following article: "Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws," University of Chicago Law Review 86:5 (June 2019), 1241-1309. Here's the abstract:

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil. 

On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and widespread assumption that family law is a civil field. Recent scholarship has challenged that understanding by examining how criminal law and family law work in tandem to police certain conduct. This Article goes further by demonstrating that modern support duties and the family courts that enforce them evolved from criminal laws and courts.

Relying on extensive historical research, this Article argues that child support enforcement is criminal law in a civil guise. Family nonsupport was criminalized around the turn of the twentieth century to permit extradition of offenders. Criminal court judges then tasked newly minted probation officers with reconciling, investigating, and monitoring families—novel state interventions in domestic life. Probation officers, in turn, staffed and promoted specialized criminal nonsupport courts (initially called “domestic relations courts” and later “family courts”) that some cities opened to handle these prosecutions in the 1910s. Beginning in the 1930s, costs and stigma associated with criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal context. Observers found the ongoing use of criminal-derived oversight methods unobjectionable; the decades in which support law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil “child support” suits surpassed nonsupport prosecutions (which all states retained) and probation officers disappeared from family litigation, the criminal heritage and continued criminal-law reinforcement of family courts and support laws were obscured.

The calculated and incomplete conversion of family support enforcement from criminal to civil undercuts the supposedly distinct purposes, procedures, and penalties associated with the civil and criminal categories. Building on scholarship that critiques the Supreme Court’s treatment of statutory schemes that blur the civil-criminal divide, the Article draws from child support history to condemn the Court’s strong deference to legislative labels and to propose greater consideration of enforcement methods. If the Court were persuaded to recognize child support incarceration as a criminal sanction, then states would face a difficult choice. They could either allocate the resources needed for constitutionally mandated criminal procedure protections or decriminalize the enforcement machinery—ideally through elimination of most child support incarceration.

Further information is available here.

--Mitra Sharafi

Agyepong, "The Criminalization of Black Children"

New from the University of North Carolina Press: The Criminalization of Black Children: Race, Gender, and Delinquency in Chicago’s Juvenile Justice System, 1899–1945 (2018), by Tera Eva Agyepong (DePaul University). The book is part of the Justice, Power, and Politics series.  A description from the Press:

In the late nineteenth century, progressive reformers recoiled at the prospect of the justice system punishing children as adults. Advocating that children’s inherent innocence warranted fundamentally different treatment, reformers founded the nation’s first juvenile court in Chicago in 1899. Yet amid an influx of new African American arrivals to the city during the Great Migration, notions of inherent childhood innocence and juvenile justice were circumscribed by race. In documenting how blackness became a marker of criminality that overrode the potential protections the status of “child” could have bestowed, Tera Eva Agyepong shows the entanglements between race and the state’s transition to a more punitive form of juvenile justice.

In this important study, Agyepong expands the narrative of racialized criminalization in America, revealing that these patterns became embedded in a justice system originally intended to protect children. In doing so, she also complicates our understanding of the nature of migration and what it meant to be black and living in Chicago in the early twentieth century.

A few blurbs:

“Agyepong’s innovative take on the role of black children in shaping juvenile justice procedures is critically important for so many fields of history, including African American history, incarceration studies, and the history of gender and sexuality.”--Marcia Chatelain 

“Agyepong makes a compelling case for the centrality of black youth to understandings of delinquency, dependency, and, by extension, criminality at the foundations of the juvenile justice system.”--Davarian L. Baldwin

More information is available here.

Bush & Tanenhaus, eds., "Ages of Anxiety: Historical and Transnational Perspectives on Juvenile Justice"

New from New York University Press: Ages of Anxiety: Historical and Transnational Perspectives on Juvenile Justice, edited by William S. Bush (Texas A&M University, San Antonio) and David S. Tanenhaus (William S. Boyd School of Law). A description from the Press:

Ages of Anxiety presents six case studies of juvenile justice policy in the twentieth century from around the world, adding context to the urgent and international conversation about youth, crime, and justice. By focusing on magistrates, social workers, probation and police officers, and youth themselves, editors William S. Bush and David S. Tanenhaus highlight the role of ordinary people as meaningful and consequential historical actors.

After providing an international perspective on the social history of ideas about how children are different from adults, the contributors explain why those differences should matter for the administration of justice. They examine how reformers used the idea of modernization to build and legitimize juvenile justice systems in Europe and Mexico, and present histories of policing and punishing youth crime.

Ages of Anxiety introduces a new theoretical model for interpreting historical research to demonstrate the usefulness of social histories of children and youth for policy analysis and decision-making in the twenty-first century. Shedding new light on the substantive aims of the juvenile court, the book is a historically informed perspective on the critical topic of youth, crime, and justice.

The table of contents is available here; the introduction, here.