The 2019 Silverman Lectures: Dissenting at the Supreme Court

The Supreme Court Historical Society has announced its Leon Silverman Lecture Series for 2019, Dissenting at the Supreme Court–New Perspectives.  On October 7, Mark R. Killenbeck, the Wylie H. Davis Distinguished Professor of Law, University of Arkansas School of Law, will present “The Dissent as Concurrence–From Fletcher to Whitney."  On October 24, Justin Driver, Professor of Law, Yale Law School, will present "Dissents From Outside the Judiciary–The Southern Manifesto as a Dissent to the Brown.”  On November 6, Pamela Brandwein, Professor of Political Science, University of Michigan, will present “Prescient Dissents–Justice Bradley and the Slaughter-House Cases.”  On November 20, Charles Cooper, founding member and chairman of Cooper & Kirk and a former law clerk to then-Justice Rehnquist, will present “The Lone Dissenter–Associate Justice William Rehnquist.”  Lectures are at 6pm in the Supreme Court Chamber at the Supreme Court of the United States, One First Street, NE, Washington, DC, with a light reception to follow.  More information here.

--Dan Ernst

Weekend Roundup

• Princeton University has announced the conference Critical Legal Studies: Intellectual History and History of the Present, to be held February 27 to February 28, 2020.  “The conference is free and open to the public; registration is requested and will be available soon via the conference website.”  The organizers are Hendrik Hartog, Princeton University, Emeritus, History; Paul Baumgardner, Princeton University, Ph.D. candidate, Politics; David Linke, Princeton University, Seeley G. Mudd Manuscript Library; and David Trubek, University of Wisconsin-Madison Voss-Bascom Professor of Law and Dean of International Studies, Emeritus, and Senior Research Fellow, Harvard Law School.  We'll post when the website is on line and the program published.

• From the New Books Network (Law), a number of conversations with authors of recent legal-historical monographs: Julilly Kohler-Hausmann (Cornell) on Getting Tough; Cyril Ghosh (Wagner College) on De-Moralizing Gay Rights; Kristin O'Brassill-Kulfan (Rutgers University) on Vagrants and Vagabonds; Kevin M. Baron (University of Florida) on Presidential Privilege and the Freedom of Information Act; Paul Finkelman (Gratz College) on Supreme Injustice; and a few more (covering recent 2019 releases) that we'll note in stand-alone posts this coming week.

• The New Rambler Review proudly announces its relaunch this month under a new board of editors: Cindy Ewing, Connor Ewing, Simon Stern, and Anna Su (all at the University of Toronto). From the editors: "Founded in 2015, New Rambler Review is an online venue for scholarly discussion of the contemporary moment, publishing reviews of select new books in law, literature, history, and politics. In contrast to the formal book review format, NRR features long-form essays that allow experts to bring their insights to bear on recent monographs and extend the conversation across disciplines in a collegial and open scholarly space. We welcome review pitches at pitches.newrambler@gmail.com."

• On August 30, William Nelson, NYU Law, will speak on The Extreme Right in Europe and America: Are they Different or the Same? in the EuroStorie research seminar at the University of Helsinki.  He “will argue that racism is the foundation of right-wing American thought but that protection of traditional Christian values had to be added to that foundation to give the American right political traction. He also poses the question whether something similar to this combination is present in Europe.”

• On September 18, Mathias Schmoeckel, University of Bonn, will be presenting A Legal Perspective on the Scottish Protestant Reformation in the Alan Watson Seminar in Legal History at Edinburgh Law School on September 18.  “The Reformation did not have a uniform effect on the European states, but rather sharpened the individualistic traits of each nation. The protestant city in the Holy Roman Empire obtained more independence, the protestant princes of the empire achieved almost sovereignty, and the Lutheran King of Denmark established a perfectly absolute government, while his subjects in Norway learned to live with more independence. In each case, the Reformation rather enhanced the pre-existing typical elements of each state. Does this scheme also work for Scottish legal history?”

• On November 7, Martha S. Jones, Johns Hopkins University, will deliver the keynote address at the annual meeting of the Society for US Intellectual History from 7:00-9:00 PM at the New School in New York City.  The schedule for the meeting is here.  H/t: JLG. 

• SUNY at Buffalo has posted a nice profile of Samantha Barbas, professor of law, director of its Baldy Center for Law & Social Policy and a former LHB Guest Blogger!

• Congratulations to Christopher Schmidt, Chicago-Kent College of Law, editor of Law and Social Inquiry, and another former LHB Guest Blogger upon his appointment as Research Professor at the American Bar Foundation.

• The Robbins Collection & Research Center at Berkeley Law is convening an event on the "intellectual legacy of John T. Noonan." More information here.

• Matthew Waxman, Columbia Law School, continues his Lawfare posts on the history of war powers with Daniel Webster, War Powers and Bird$h*t.

• Our friends at the Federal Judicial Center note that Supreme Court of the United States has posted a complete set of its Rules from 1803 onward.

• Many of us don’t teach undergraduates, but we like Jonathan W. Wilson’s Favorite First-Day Activity anyway.

• ICYMI: Erin Blakemore, over at the The History Channel, on martial law in Hawaii during World War 2.

• From the Washington Post's "Made by History" section: "Everyone is talking about 1619. But that’s not actually when slavery in America started," by Ciara Torres-Spelliscy (Stetson Law School); and more.

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

Tyler on Judicial Review of Internment in the US and UK in WW2

Amanda L. Tyler, University of California, Berkeley, School of Law, has posted Courts and the Executive in Wartime: A Comparative Study of the American and British Approaches to the Internment of Citizens during World War II and Their Lessons for Today, which appears in the California Law Review 107 (2019): 789-866:

This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of citizens, and the manner in which British and American courts reviewed challenges brought by those detained during the war. Comparing the experiences of the two countries reveals that in both cases the courts deferred extensively to the political branches when it came to reviewing challenges to the wartime detention policies, essentially staking out roles that left them largely relegated to the sidelines of public debates over the propriety of internment policies. A comparison of the British and American experiences also reveals that, as the war continued, the two chief executives struck decidedly different positions as to the wisdom and lawfulness of detention policies directed at citizens. In the United States, Roosevelt ignored the legal advice of many of his key advisers regarding the unconstitutionality of the detention of Japanese American citizens and — again against the advice of his advisers — later delayed the closing of the internment camps until after the 1944 election. By contrast, Churchill — who operated in a different legal context that granted him greater powers than his American counterpart — came to view such policies as inconsistent with British constitutional tradition and became a crucial voice urging the termination of such detentions.

The Article then attempts to understand both why the two executives charted different courses on this issue as the war unfolded and whether there are any lessons to be drawn from these events with respect to how we should think about the separation of powers during wartime today. Focusing on the British experience during the war, Churchill’s change of course suggests that the executive can and sometimes will take the lead in declaring and protecting a country’s constitutional values without prodding by the courts, even in wartime, and even in the absence of legal compulsion. But as is explored in the pages that follow, the British experience may be a particularly British story and more generally one that differed in significant ways from the American story. This, in turn, calls into question just how much the British experience during the war should inform debates over the separation of powers in American constitutional law. The American experience during the war, moreover, proves a cautionary tale. Specifically, it reveals a series of failings on the part of the executive branch to acknowledge and engage with the facts on the ground and honor long-accepted constitutional traditions in formulating wartime policies. This example therefore suggests that the executive branch is ill equipped to self-regulate on this score in times of war. These failings in turn call into question the common practice of courts to defer extensively to the executive on matters of national security and more generally implicate fundamental questions about the judicial role in a constitutional democracy.

Although grounded in events that took place over seven decades ago, this study is undertaken for a very timely purpose. Once again, we live in a time in which the executive branch has argued that its decisions ostensibly predicated upon heightened concerns about national security should receive extensive, if not complete, deference from the Supreme Court. In addressing such arguments now and in the future, the Court would be wise to remember how judicial deference to executive branch assertions on matters of national security played out during World War II.

Siddiqui on Syed Mahmood

Sohaira Siddiqui, Georgetown University Qatar has published "Navigating Colonial Power: Challenging Precedents and the Limitation of Local Elites" in Islamic Law and Society 26:3 (13 June 2019), 1-41. Here's the abstract: 

In 1869, the British allowed Muslims to sit as judges on the High Court. This article explores the legal opinions of the first Muslim judge to be appointed to the High Court, Syed Mahmood. Straddling two competing worlds – that of Cambridge University and that of his native India – Justice Mahmood both legitimated and resisted colonial judicial power. In this essay I will demonstrate how British judges interpreted points of Islamic law within an English legal framework, and how these interpretations contradicted their translated texts of Islamic law, yet became the foundation of legal precedents established through the doctrine of stare decisis. Despite participating within the British colonial judiciary, Mahmood challenged these precedents, demonstrating his ability to navigate the paradoxes of colonial power to secure for himself a legitimate platform from which he could argue his juridical interventions. The efficacy of these challenges, however, ultimately was restrained by the institutions and structures of the colonial jural project.

Further information is available here.

--posted by Mitra Sharafi

Weekend Roundup

• The Law & Political Economy (LPE) blog just ran a mini symposium on "democratizing administrative law." Historians were well represented, with posts by Sophia Z. Lee (Penn Law) (here) and LHB blogger Karen Tani (Berkeley Law) (co-authored here with Matthew Cortland and here with Cortland and Nancy Chi Cantalupo).

• Seven Surprising Ways I Helped Promote My First Book, by Melanie A. Kiechle, Virginia Tech.

• ICYMI: The NPR podcast "Throughline" has recently released an episode on Milliken v. Bradley.  The Stanford Daily on Lawrence Friedman's "Introduction to American Law" (scroll to item 5)

• From the Washington Post's Made by History section: Timothy Stewart-Winter (Rutgers University-Newark) on "How the black press helped pave the way for gay rights"; Shahrukh Khan (J.D. candidate, Emory University School of Law) on "The Supreme Court’s illiberal legacy."

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

Weekend Roundup

• Over at the New Books Network, legal historians are in the spotlight: you'll find conversations with former guest bloggers Sarah Seo (Iowa Law) and Sam Erman (USC) on their recent books Policing the Open Road and Almost Citizens, respectively; also conversations with University of Virginia law professor Jessica Lowe, on her new book Murder in the Shenandoah, and her UVA colleague Cynthia Nicoletti, on her 2017 book Secession on Trial.

• Speaking of UVA, should the University rename the Alderman library? A Law Library summer intern makes the case.

• From the Washington Post's "Made by History" section: Khalil Gibran Muhammad (Harvard Kennedy School) on "why police accountability remains out of reach"; David Pettinicchio (University of Toronto) on "why disabled Americans remain second-class citizens."

• Former US Solicitor General Donald B. Verrilli, Jr.'s Jackson Lecture at Chautauqua Institution and an interview by the Robert H. Jackson Center are here and here.

• The Historical Society of the District of Columbia Circuit's series based on its oral history collection continues with posts on Samuel Dash, Bernard Nordlinger, and Judge Reggie Walton.

• ICYMI: Judge Glock's Unpacking the Supreme Court: Judicial Retirement, Judicial Independence and the Road to the 1937 Court Battle, in the Journal of American History (June 2019).  Over at Lawfare: Arshan Barzani’s review of William A. Schabas’s The Trial of the Kaiser (Oxford University Press, 2018).  At Balkinization, Marty Ledereman's post on the history of congressional investigations of presidential activity.  At HNN, Ronald L. Feinman post on "The Long History of Unjust and Lawless Attorneys General."

• It looks like this job posting at Whitman College, for an Assistant Professor of Politics, could be a good fit for a legal historian.

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

Bettge on Judicial Review and Originalism

Thomas Bettge has posted Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins, which appeared in the Willamette Law Review 55 (2018): 1-45:

Although originalism has occasioned substantial rethinking of many facets of our constitutional law, the doctrine of judicial review articulated in Marbury v. Madison has gone largely unquestioned. This article explores the uncertain place of judicial review in the original Constitution, and systematically lays out the consequences of that uncertainty for today's originalism.

The article unfolds the problems originalists face if judicial review was not part of the original constitutional framework. While many scholars in both the originalist and nonoriginalist camps believe that judicial review's place in the original Constitution is well established, this paper scrutinizes the leading scholarship on the history of judicial review and shows that, contrary to popular belief, judicial review's historical bona fides are fundamentally uncertain. Because judicial review cannot be justified on originalist grounds, originalists need to seek other reasons for engaging in it, and must reconcile those reasons with the basic tenets of originalism. To an extent, they have already done this, but significant gaps remain. The article considers what reasons originalists could invoke, and concludes that it will be difficult, absent historical legitimation for the practice of judicial review, for originalists to make an argument for judicial review that favors originalism over competing interpretive theories.

–Dan Ernst.  H/t: Legal Theory Blog

Journal of Southern Legal History, Vol. 26

Here’s the TOC for volume 26 (2018) of the Journal of Southern Legal History:

Oral History of Manley F. Brown (2016).  Introduction and interview by Patrick Emery Longan

Clyde Ray, “John Marshall, the Native American Cases, and the Idea of Constitutional Nationalism”

Nathaniel J. Berry, “Justice of the Peace Manuals in Virginia before 1800”

White on McCulloch and Judicial Statesmanship

Adam White, George Mason University Antonin Scalia Law School, has posted John Marshall's Judicial Statesmanship in McCulloch v. Maryland, which he wrote for “a volume on the 200th anniversary of McCulloch v. Maryland, edited by Gary Schmitt for the American Enterprise Institute”:

Writing on the early American republic, Alexis de Tocqueville observed that federal judges "must not only be good citizens, educated and upright men," but "one must also find statesmen in them." Yet nearly 200 years later, notions of "judicial statesmanship" remain nebulous — and divisive. Nevertheless, both proponents and critics of "judicial statesmanship" seem to largely agree on one thing: "judicial statesmanship" requires a judge to go beyond the law to decide cases.

There is a better way to think of "judicial statesmanship." In his seminal study of statesmanship and party, Professor Harvey C. Mansfield, Jr. observed that "[i]t is not that a statesman is unprincipled or above principle; it is rather that his principle loses its refinement in the translation to public speech, and thence to party program.” This is how "judicial statesmanship" is best understood — not in terms of what the judge adds to the law, but in terms of what the judge declines to add to the law, or at least what the judge declines to say about the law. And this is the statesmanship that Chief Justice Marshall exemplified in McCulloch v. Maryland.

--Dan Ernst

Weekend Roundup

• Over at New Books in Law, Jonathan Gienapp (Stanford University) discusses his book The Second Creation; former guest blogger Kimberly Welch (Vanderbilt University) discusses Black Litigants in the Antebellum American South.

• From the New Legal Realism blog: Malcolm Feeley (University of California, Berkeley) on Frank Remington, Wisconsin, and the influential American Bar Foundation project on the administration of criminal justice in the U.S. (The project was a collaboration with the Ford Foundation, the ABA, and others.) Willard Hurst makes a few cameo appearances.

• Are you up to speed on the due dates for the awards and prizes of the Organization of American Historians?  We ask, because we’re jurying one of them.  DRE 

• The HistPhil forum on the Dartmouth College v. Woodward case continues. Here's a contribution from Evelyn Atkinson (American Bar Foundation doctoral fellow/Ph.D. candidate, University of Chicago).

•  From the Washington Post's Made by History section: Ariela Gross (USC) and Alejandro de la Fuente (Harvard University) on the history of racialized understandings of citizenship; Smita Ghosh (Georgetown University) on migrant detention; Carly Goodman (co-editor, Made by History), S. Deborah Kang (California State University San Marcos), and Yael Schacher (Refugees International) on the power of immigrant rights advocates to protect and enforce the right to asylum; Rebecca Spang (Indiana University) on what the French Revolution teaches us about the dangers of gerrymandering; and more.

• Call for Papers: “Law and Political Economy: Democracy After Neoliberalism,” the inaugural Law and Political Economy Project conference. 

• For a limited time, The Czar and the Slaves: Two Puzzles in the History of International Arbitration, by Bennett Ostdiek and John Fabian Witt is open access in the American Journal of International Law.

• Newly published online in Law and History Review and Cambridge Core: Method and Dialogue in History and Originalism by Logan Everett Sawyer, and “Amongst the Most Desirable Reading”: Advertising and the Fetters of the Newspaper Press in Britain, c. 1848–1914, by Anat Rosenberg.

• ICYMI: Manisha Sinha on The New Fugitive Slave Laws in NYRB.  As previously mentioned (but now the subject of an official HLS announcement), Property law scholar [and Legal Historian] Molly Brady joins the Harvard Law faculty.  A play on McNaughton's Case at the Edinburgh Fringe, via The Scotsman.

• Update: Listen to Sarah Milov discuss the controversy over an NPR segment that used her work without attribution here. Background here. H/t: Emily Prifogle and @womenalsoknowhistory

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

Loft on Litigation and the Anglo-Scottish Union

Philip Loft, University of Cambridge has published "Litigation, the Anglo-Scottish Union, and the House of Lords as the High Court, 1660-1875" in The Historical Journal 61:4 (2018), 943-67. The article won the Royal Historical Society's 2019 David Berry Prize for best essay on any aspect of Scottish history. Here's the abstract: 

This article examines the role of the House of Lords as the high court from the Restoration of 1660 to the passage of the Appellate Jurisdiction Act in 1876. Throughout this period, lay peers and bishops judged appeals on civil law from the central courts of England and Wales, Ireland (aside from between 1783 and 1800), and Scotland after the Union of 1707. It has long been known that the revolution of 1688–9 transformed the ability of parliament to pass legislation, but the increased length and predictability of parliamentary sessions was of equal significance to the judicial functions performed by peers. Unlike the English-dominated profile of eighteenth-century legislation, Scots constituted the largest proportion of appellants between 1740 and 1875. The lack of interaction between Westminster and Scotland is often seen as essential to ensuring the longevity of the Union, but through comparing the subject matter of appeals and mapping the distribution of cases within Scotland, this article demonstrates the extent of Scottish engagement. Echoing the tendency of Scottish interests to pursue local, private, and specific legislation in order to insulate Scottish institutions from English intervention, Scottish litigants primarily sought to maintain and challenge local privileges, legal particularisms, and the power of dominant landowners.

Further information is available here. 

--Mitra Sharafi

Donelson on Holmes and Nihilism

Raff Donelson, Louisiana State University, Baton Rouge, has posted The Nihilist, which appears in The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. (Seth Vannatta, ed. Lexington Press 2019), 31-48:

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

–Dan Ernst.  H/t: Legal Theory Blog

TOC for the volume after the jump:

Weekend Roundup

• Advance alerts from Law and History Review and Cambridge Core: Originalism and the Academy in Exile, by Paul Baumgardner, and Trial without Jury in Guam, USA, by Katherine Unterman.

• New in the Juridical Review: Andrew Simpson, Men of Law in the Aberdeen Council Register? A Preliminary Study, Circa 1450-1460.

• Ellen M. Gilmer, E&E News, reports on that historical reargument of Chevron, sponsored by the the Historical Society of the DC Circuit.

• OUP and CUP would like to know what scholarly monographs mean to academic researchers, readers and authors.

• The Department of American Indian Studies, College of Liberal Arts, University of Minnesota invites applications for a full-time faculty position (open rank, tenured or tenure-track) beginning fall semester 2020.  The announcement is here.

• “Luisa M. Kaye, daughter of Judith S. Kaye, former Chief Judge of the New York Court of Appeals, discusses the autobiography she co-edited about her mother's life and career and reveals the personal moments that shaped her judicial philosophy.”  NYSBA.

• New From Edward Elgar: Authoritarian Constitutionalism: Comparative Analysis and Critique, ed. Helena Alviar García, Universidad de Los Andes, Colombia, and Günter Frankenberg, Goethe University in Frankfurt/Main, Germany.  “The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism.”

• ICYMI: Princeton announces that Dirk Hartog has gone emeritus; HLS announces that Laura Weinrib is joining its faculty.   Four women, four lawyers: How a Fond du Lac family made law history before they could vote (Fond du Lac Reporter). More on legal historians as First Gentlemen (or whatever), here and here.

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

Weekend Roundup

C.J. Warren Burger (LC)

• Jeffrey B. Morris, Touro College Jacob B. Fuchsberg Law Center, has posted The Fiftieth Anniversary of Warren Burger's Appointment as Chief Justice on the website of the Richard Nixon Foundation, which will host a conference on the Burger Court at the Nixon Presidential Library in Yorba Linda, CA, in 2020.

• Mary Ziegler, Florida State University College of Law and former LHB Guest Blogger is up on the BBC History Extra with A brief history of US abortion law, before and after Roe v Wade.

• “The ‘Shaping Justice: A Century of Great Crimes in Merced County’ exhibit, opening at the Courthouse Museum on June 27 at 5 p.m., will chronicle the development of Merced County’s legal system in its first 100 years by examining 30 crimes/cases from the Snelling Wild West shootout in 1857 to finally putting the elusive ‘vice king’ Rusty Doan behind bars in 1952.”  More, from the Merced Sun-Star.

• From the Washington Post's Made by History section: Linda Hirshman on "How the Supreme Court made sexual harassment cases more difficult to win"; Shana Bernstein (Northwestern University) on why "It’s time for regulatory agencies to start putting public health ahead of private profit"; Marixa Lasso (Universidad Nacional de Colombia) on "Why birthright citizenship is crucial to democratic governance"; and more.

• Congress held a hearing this week on reparations. The Chronicle of Education noted the absence of historians from those invited to testify. In the media, however, they've spoken up. Andrew Kahrl (University of Virginia) weighs in here, at the New York Times. 

• Just up on the Law and History Review website: Lindsay M. Chervinsky, White House Historical Association, Interpreting Article II, Section 2: George Washington and the President's Powers.

• ICYMI: Olivia B. Waxman on the history of executive privilege in Time, via HNN. Chris Geidner on The Court Cases That Changed L.G.B.T.Q. Rights in the NYT.  Donald Ritchie, the former historian of the U.S. Senate, on The Impeachment Illusion in OUPblog via HNN.  Stephen Griffin on Jonathan Geinapp's Second Creation in Balkinization.

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

Yahaya on interracial relationships in the British Empire

Nurfadzilah Yahaya, National University of Singapore, has published "Class, White Women, and Elite Asian Men in British Courts during the late nineteenth century" in the Journal of Women's History 31:2 (2019), 101-123. Here's the abstract: 

British imperial politics was profoundly affected by class alongside gender and race. This article probes how legal courts situated white women who were involved in interracial relationships with powerful Asian men from the perspective of law and press reports of two cases during the period of high empire in the late nineteenth century. These cases occurred in the metropolitan imperial cities of London and Singapore that highly valued merchants’ and foreign rulers’ contributions to imperial coffers. Class ultimately played a huge factor in the outcome of both cases, which involved two prominent men whose wealth, fame, and high status made their subordinate status within the British Empire ambiguous. Reports of trial proceedings demonstrate that class tended to unsettle notions of “whiteness,” “subjecthood,” and “jurisdiction.” This meant that the colonial elite formed an unstable category that was highly complex, flexible, and, as a result, potentially fragile.

The piece is part of a special issue, "Colonial Intimacies and Gendered Violence." Further information is available here. 

Chief Judge Judith Kaye: In Her Own Words

New from SUNY Press: Judith S. Kaye in Her Own Words: Reflections on Life and the Law, with Selected Judicial Opinions and Articles:

In 1983, Judith S. Kaye (1938–2016) became the first woman appointed to the Court of Appeals, New York’s highest court. Ten years later, she became the first woman to be appointed chief judge of the court, and by the time she retired, in 2008, she was the longest-serving chief judge in the court’s history. During her long career, she distinguished herself as a lawyer, jurist, reformer, mentor, and colleague, as well as a wife and mother.

Bringing together Kaye’s own autobiography, completed shortly before her death, as well as selected judicial opinions, articles, and speeches, Judith S. Kaye in Her Own Words makes clear why she left such an enduring mark upon the court, the nation, and all who knew her.  The first section of the book, Kaye’s memoir, focuses primarily on her years on the Court of Appeals, the inner workings of the court, and the challenges she faced, as chief judge, in managing a court system populated by hundreds of judges and thousands of employees.  The second section, a carefully chosen selection of her written opinions (and occasional dissents), reveals how she guided the law in New York State for almost a quarter century with uncommon vision and humanity. Her decisions cover every facet of New York and federal law and have often been quoted and followed nationally.  The final section of the book includes selections from her numerous articles and speeches, which cover the field, from common law jurisprudence to commercial law to constitutional analysis, all with an eye to the future and, above all, how the law can best affect the everyday lives of people who come to court—willingly or unwillingly—including, not least, those most in need of the law.

--Dan Ernst.  H/t: JDG3

Longan on Judge Bootle and the Integration of the University of Georgia

I was pleased to note the recent publication by my law school classmate Patrick Emery Longan, Mercer University School of Law, of  “You Can’t Afford to Flinch in the Face of Duty”: Judge William Augustus Bootle and the Desegregation of the University of Georgia," Stetson Law Review 48 (23019): 379-425.  From the introduction:

On January 6, 1961, United States District Judge William Augustus Bootle granted a permanent injunction that required the University of Georgia to admit its first two black students, Hamilton E. Holmes and Charlayne A. Hunter. The backlash began immediately. Newspaper editorials condemned the decision. The Governor of Georgia threatened to close the University. Students rioted. A man escaped from an insane asylum, armed himself and went looking for Charlayne Hunter at her dormitory. Judge Bootle received numerous critical letters, including some that were threatening. Yet Judge Bootle’s attitude was that he did no more than what his position as a judge required him to do. Late in his life, he sat for an interview as part of the Foot Soldier Project for Civil Rights Studies at the University of Georgia. He summed up his actions and motivations by saying: “You can’t afford to flinch in the face of duty. . . . [I]t just happened to happen on my watch.  I don’t deserve any credit. Don’t seek any. I did what any self-respecting, honest judge would have done.”

--Dan Ernst

Ecclesiastical Institutions in Colonial South America

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.  DRE]

With "Normatividades e instituciones eclesiásticas en el virreinato del Perú, siglos XVI-XIX", edited by Otto Danwerth, Benedetta Albani, and Thomas Duve, the Max Planck Institute for European Legal History presents the newest publication in its Open Access book series Global Perspectives on Legal History.

Ecclesiastical institutions and actors played key roles in the formation of normative orders in early modern Ibero-America. Their importance, which has already been illustrated by an earlier volume on New Spain (GPLH 5, published in 2018), is now further corroborated and explored in case studies focusing on the viceroyalties of Peru and of Río de la Plata.

The eight chapters of this Spanish-speaking volume deal with a diversity of themes relating to both urban and rural locations in what is now Peru, Bolivia, Argentina and Chile. They examine the ecclesiastical legislation of Toribio de Mogrovejo, explore the role of legal experts in canon law litigation, compare the activities of Jesuit missionaries in Austria and Peru, explain the life of the nuns in the Monasterio de la Concepción in Lima, discuss problems of diocesan administration in outlying zones of the archdiocese of La Plata, and analyse the ius patronatus in Chile during the independence movement.

The editors' purpose has been to present approaches that explore the relationship between different types of normativities, their local adaptations, their links to global debates, the forms of conflict resolution, as well as the role of jurists, theologians and other actors. The contributions propose new research fields for legal history and the history of the Church, but are also relevant for social and cultural historians. They contribute to a better understanding of the normative religious universe of Ibero-America between the 16th and 19th centuries. An upcoming third volume will cover the viceroyalty of New Granada, and the tetralogy will be completed with a final volume on Brazil.

The volume is available as usual on the website of the MPIeR for PDF download in Open Access [here].

Cushman on the Judicial Reforms of 1937

Barry Cushman, Notre Dame Law School, has posted The Judicial Reforms of 1937, which is forthcoming in volume 61 of the William and Mary Law Review (2020):

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction in the lower federal courts. The national/nationwide/universal injunction had yet to emerge, but friends of the Administration nevertheless maintained that injunctive relief granted by the lower courts was substantially and in some cases decisively frustrating implementation of vital elements of the New Deal agenda. This contribution to the William & Mary Institute of Bill of Rights Law symposium on "The Role of Courts in Politically Charged Moments" surveys the uses and perceived effects of such injunctive relief, and relates the story of efforts by the political branches to address this challenge through 1) enlargement of the lower federal judiciary, and 2) reforms to judicial procedure and/or jurisdiction that would inhibit the power of lower federal courts to thwart implementation of federal programs. The principal solution at which they arrived, which required among other things that only three-judge district court panels be authorized to enjoin the enforcement of federal law, remained in force for nearly forty years before it was repealed in 1976 – ironically, one might think, just as the national/nationwide/universal injunction was emerging as a phenomenon, and the stakes of a single judge having power to grant injunctive relief accordingly were becoming considerably elevated.

--Dan Ernst

Weekend Roundup

• Over at Et Seq., Irene Gates, the project archivist at the Harvard Law School Library for the Justice Antonin Scalia papers, reports that items "that should be open next year includes the Justice’s pre-Supreme Court files (1970-1986); correspondence (through 1989 only); speaking engagement and event files (through 1989 only); photographs (circa 1982-2016); and miscellaneous files, such as subject files and articles about Scalia (1986-2016).”  H/t: JQB

• A recent post by our friends at the Federal Judicial Center reminds us of its list of “Unsuccessful Nominations and Recess Appointments” to the federal judiciary.

• Former LHB Guest Blogger Mary Ziegler, Florida State College of Law, discusses the history of the“fetal personhood” movement as part of a National Constitution Center podcast on Box v. Planned Parenthood.

• According to Bucks Local News, “In a bold decision that will preserve the material record of American Revolutionary history and make it accessible to scholars across the globe,” the holdings of the David Library of the American Revolution will be relocated to the American Philosophical Society.  More.

• Some years back, Roman Hoyos observed that their flexibility as teachers allow many legal historians to contribute mightily to the law school curriculum.  The announcement of the 2019 Law Teaching awards at the University of Pennsylvania makes the point nicely.  Among the recipients were Sophia Lee, Serena Mayeri, and Herbert Hovenkamp.  --DRE

•  ICYMI: Seven historians say Justice Clarence Thomas erred in writing in Box that “[f]rom the beginning, birth control and abortion were promoted as a means of effectuating eugenics."  (WaPo).  Also, Seth Barrett Tillman’s latest brief in the emoluments-clause litigation.  Finally, the Seattle University Law Review has published Berle X, the latest symposium inspired by the mid-twentieth-century law professor and government official Adolf Berle   I can especially recommend the contribution of my Georgetown Law colleague Robert Thompson.  --DRE

• At The Conversation: Anne Fleming (Georgetown Law) on the relevance of "the history of small-dollar loans and their regulation" to recent proposals to curb predatory lending.; 

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