Evans on Blumenthal and the mind

Catherine L. Evans, University of Toronto, has published a review essay in Law & Social Inquiry on Susanna L. Blumenthal's Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016). Here's the abstract for "Wondrous Depths: Judging the Mind in Nineteenth-Century America," LSI 44:3 (Aug. 2019), 828-49:

Susanna L. Blumenthal’s Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016) is a history of the self in nineteenth-century America. When judges considered a person’s criminal responsibility or civil capacity in court, they created a body of legal and political thought about the self, society, the economy, and American democracy. This essay uses Blumenthal’s book to explore recent work on law and the mind in Britain and North America, and argues that abstract questions about free will, the self, and the mind were part of the everyday jurisprudence of the nineteenth century. Debates about responsibility were also debates about the psychological consequences of capitalism and the borders of personhood and citizenship at a time of rapid economic, political, and social change.

Further information is available here.

--Mitra Sharafi

Potter on prisons in British history

Harry Potter (barrister) has published Shades of the Prison House: A History of Incarceration in the British Isles with Boydell Press. From the publisher:

Shades of the Prison House explores the history of imprisonment in the British Isles from Anglo-Saxon times to the present day. Over the centuries, prisons - from castle dungeons to "lockups" to "penitentiaries" to gaols - have changed radically in name, conditions, attributes and functions, as well as in their character and rationale. Prisons have served many aims: detention, deterrence, punishment, reformation and rehabilitation, all in varying degrees. Yet while prisons and their purposes have been transformed, the same debates on imprisonment have continually recurred. Concerns about overcrowding and over-pampering, security and safety have been expressed from the very beginning, and modern notions that prison might serve a purpose other than containment or punishment were espoused long before the eighteenth century.

Drawing on letters, treatises, personal accounts, histories, legal and official reports and studies of prison architecture and design, this book tells the story of prisons, prison life and those who experienced it, be they prisoners, governors, chaplains, warders, reformers or advocates. As entertaining as it is informative, the book examines the nature and quality of imprisonment over the last fifteen hundred years, before surveying present problems and concluding with thoughts on future directions.

 Further information is available here.

--Mitra Sharafi

Lattman on Bodin's De la Démonomanie des Sorciers

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

Christopher Lattmann, Der Teufel, die Hexe und der Rechtsgelehrte. Crimen magiae und Hexenprozess in Jean Bodins De la Démonomanie des Sorciers (Studien zur europäischen Rechtsgeschichte 318) Frankfurt am Main: Klostermann 2019.  390 p., 69,00 €, ISBN 978-3-465-04389-8

Jean Bodin is known above all as the author of the Six livres de la République (1576) and the founder of the theory of sovereignty. Most modern readers, however, are less familiar with his demonology of 1580, which was also a bestseller at the time - not least because witchcraft law was hardly standardised in early modern France. In De la Démonomanie des Sorciers (1580), Bodin discussed the nature of witchcraft and gave instructions for the strict legal prosecution of the crimen magiae. Christopher Lattmann's study is the first to provide a detailed examination of this controversial legal work from the perspective of legal history. Bodin understood witchcraft as a phenomenon that resulted from the interaction of God, devil and man. His view of the world is reflected in his material witchcraft law, above all in his treatment of the various witchcraft offences: from entering into a pact with the devil to participating in the Witches' Sabbath or using maleficent magic. Lattmann demonstrates the influences of Mosaic, Roman and ecclesiastical law as well as of contemporary demonology on Bodin's work. Against the background of French criminal procedural law, he shows that Bodin established a special summary procedure for witch trials that differed from the regular inquisition procedure. Since Bodin could not base himself on any existing French law for this purpose, he drew on the doctrines of foreign criminal jurists. Lattmann thus shows how Bodin's work originated in a European legal sphere and became an important contribution to European criminal law in the 16th century.

–posted by Dan Ernst

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.

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.

Tell on Emmett Till

Dave Tell, University of Kansas has published Remembering Emmett Till with the University of Chicago Press. From the publisher: 

Take a drive through the Mississippi Delta today and you’ll find a landscape dotted with memorials to major figures and events from the civil rights movement. Perhaps the most chilling are those devoted to the murder of Emmett Till, a tragedy of hate and injustice that became a beacon in the fight for racial equality. The ways this event is remembered have been fraught from the beginning, revealing currents of controversy, patronage, and racism lurking just behind the placid facades of historical markers.

In Remembering Emmett Till, Dave Tell gives us five accounts of the commemoration of this infamous crime. In a development no one could have foreseen, Till’s murder—one of the darkest moments in the region’s history—has become an economic driver for the Delta. Historical tourism has transformed seemingly innocuous places like bridges, boat landings, gas stations, and riverbeds into sites of racial politics, reminders of the still-unsettled question of how best to remember the victim of this heinous crime. Tell builds an insightful and persuasive case for how these memorials have altered the Delta’s physical and cultural landscape, drawing potent connections between the dawn of the civil rights era and our own moment of renewed fire for racial justice.

 Praise for the book:

“Remembering Emmett Till sets the bar for future work on memory, civil rights, and the case that arguably gave the movement its legs. With deft archival work and savvy on-the-ground sleuthing, Tell unearths from the unrelenting Delta landscape many secrets locals have longed to keep buried. Accessible, engaging, and a page-turner from the jump.” -David W. Houck

“Tell has written the Emmett Till book still begging to be written. The tragedy of this case gave it a place in history books, but its place in American memory was far more complicated. Revisionist history is one thing; rewriting history is another. Tell’s argument that race and geography were at the core of that rewriting makes for a compelling and convincing read. As Tell shows, collective forgetting, willfully done, has created a new layer of tragedy to the Emmett Till story.” -Devery S. Anderson

“With almost surgical precision, Tell unpacks what he presciently calls ‘the deep intertwining of race, place, and commemoration’ in his brilliant new history of the remembrance of Emmett Till. Excellent histories of this 1955 murder abound, but no one until now has told the multilayered and painfully tangled history of Till’s commemoration in the Mississippi Delta. This may be the single greatest ‘history of memory’ I have ever read.” -James Young

"Remembering Emmett Till is an expertly rendered and original study of an acutely important episode in modern national memory. Tell shows, in evocative detail, how collective patterns and projects of commemoration can be both necessary and confounding, social and topographical, found and invented, tragic and reconstructive. In doing so, Tell blends ideas, places, artifacts, and evidence together in new ways so that readers may revisit, with striking implications, the question of how best to commemorate a historical injustice that will not--and, as Tell suggests, should not--leave us alone." -Bradford Vivian

Further information is available here.

--Mitra Sharafi

Stevens on the First "Four Strikes" (as it were) Law

Nomos and Nullification: A Coverian View of New York's Habitual Offender Law, 1926 to 1936, by Caleb J. Stevens, was recently published in the American Criminal Law Review 56 (2019): 427-463.  I believe Mr. Stevens wrote the article while a law student at the University of Illinois.  He thanks two legal historians on that law faculty, Bruce Smith and Richard Ross.  Here’s the abstract:

In 1926, New York passed a habitual offender law that mandated life sentences for a fourth felony conviction, regardless of severity. Called the Baumes Law, after its principal author and advocate New York Senator Caleb Baumes, the law remains one of the harshest habitual offender laws ever passed in the United States. Until its amendment in 1936, the law launched an intense policy debate that in many ways reflects the contemporary debate over Three Strikes legislation and high U.S. incarceration rates.

In 1994, California enacted a habitual offender law, popularly referred to as the “Three Strikes and You’re Out” Law, which dovetailed with a period of emphasis on the incapacitation of habitual offenders. Several states passed similar laws that punish recidivists with longer prison terms. In Washington, a third conviction for the “most serious offenses” listed in the law requires a life sentence without the possibility of parole. Until its revision in 2012, the California Three Strikes Law was one of the most severe, imposing an indeterminate sentence of twenty-five years to life for defendants previously convicted of two or more felonies. Even with the Supreme Court decision in Ewing v. California upholding the California Three Strikes Law against an Eighth Amendment challenge, the policy debate continues around current habitual offender laws and high incarceration rates. During the Progressive Era, a similar debate raged in New York and across the U.S. over how to address the ‘habitual criminal problem.’ New York answered with passage of the Baumes Law – one of the harshest habitual offender statutes in U.S. history.

This article discusses, through the lens of Robert Cover’s concept of nomos, the nullification of the Baumes Law by juries, judges, and prosecutors in order to mitigate its harshest application. Many of these criminal justice actors repeatedly exhibited concern about imposing life sentences for four felony convictions, especially for non-violent felonies such as minor property crimes. Section I summarizes Robert Cover’s concept of nomos, discussing its relevance to the rise and fall of the Baumes Law. Section II then provides a brief historical backdrop to passage of the Baumes Law, highlighting the role of a widely perceived crime wave, and the pseudo-scientific rationales for incapacitation and removal of certain persons from society. Section III discusses the competing normative universes that characterized the fairly turbulent, brief history of the Baumes Law.

–Dan Ernst

Tallgren & Skouteris, eds, "The New Histories of International Criminal Law"

Oxford University Press has released The New Histories of International Criminal Law: Retrials (May 2019), edited by Immi Tallgren (University of Helsinki) and Thomas Skouteris (The American University in Cairo). A description from the Press:

The language of international criminal law has considerable traction in global politics, and much of its legitimacy is embedded in apparently 'axiomatic' historical truths. This innovative edited collection brings together some of the world's leading international lawyers with a very clear mandate in mind: to re-evaluate ('retry') the dominant historiographical tradition in the field of international criminal law. 

Carefully curated, and with contributions by leading scholars, The New Histories of International Criminal Law pursues three research objectives: to bring to the fore the structure and function of contemporary histories of international criminal law, to take issue with the consequences of these histories, and to call for their demystification. The essays discern several registers on which the received historiographical tradition must be retried: tropology; inclusions/exclusions; gender; race; representations of the victim and the perpetrator; history and memory; ideology and master narratives; international criminal law and hegemonic theories; and more. 

This book intervenes critically in the fields of international criminal law and international legal history by bringing in new voices and fresh approaches. Taken as a whole, it provides a rich account of the dilemmas, conundrums, and possibilities entailed in writing histories of international criminal law beyond, against, or in the shadow of the master narrative.

More information, including the TOC, is available here.

-- Karen Tani

Kotch on the Death Penalty in North Carolina

The University of North Carolina Press has published Lethal State: A History of the Death Penalty in North Carolina, by Seth Kotch (University of North Carolina, Chapel Hill). A description from the Press:

For years, American states have tinkered with the machinery of death, seeking to align capital punishment with evolving social standards and public will. Against this backdrop, North Carolina had long stood out as a prolific executioner with harsh mandatory sentencing statutes. But as the state sought to remake its image as modern and business-progressive in the early twentieth century, the question of execution preoccupied lawmakers, reformers, and state boosters alike.

In this book, Seth Kotch recounts the history of the death penalty in North Carolina from its colonial origins to the present. He tracks the attempts to reform and sanitize the administration of death in a state as dedicated to its image as it was to rigid racial hierarchies. Through this lens, Lethal State helps explain not only Americans' deep and growing uncertainty about the death penalty but also their commitment to it.

Kotch argues that Jim Crow justice continued to reign in the guise of a modernizing, orderly state and offers essential insight into the relationship between race, violence, and power in North Carolina. The history of capital punishment in North Carolina, as in other states wrestling with similar issues, emerges as one of state-building through lethal punishment.

Advance praise:

"With poignant prose and an acute analytical eye, Kotch has written a harrowing and unforgettable history that exposes the inequity of the death penalty in the United States. Some of this eye-opening and moving story is peculiar to North Carolina, but, alas, much of it is not. Anyone interested in how the death penalty has been applied and why it continues to be applied in the United States should read Lethal State."--W. Fitzhugh Brundage 

"Few historical studies have so thoroughly refocused my understanding of one of the foremost issues of our time: the criminal justice system's persistently inequitable treatment of African American men. Beautifully and passionately written, Lethal State should convince any fence-sitter that the arbitrary, utterly unjustly administered death penalty should finally become thing of the past, as it has in every Western nation except the U.S."--Jacquelyn Dowd Hall

More information is available here.

-- Karen Tani

Burney, Hamlin and friends on Global Forensic Cultures

Out now with Johns Hopkins University Press is Global Forensic Cultures: Making Fact and Justice in the Modern Era, edited by Ian Burney, University of Manchester and Christopher Hamlin, University of Notre Dame. From the publisher: 

Contemporary forensic science has achieved unprecedented visibility as a compelling example of applied expertise. But the common public view—that we are living in an era of forensic deliverance, one exemplified by DNA typing—has masked the reality: that forensic science has always been unique, problematic, and contested. Global Forensic Cultures aims to rectify this problem by recognizing the universality of forensic questions and the variety of practices and institutions constructed to answer them.

Groundbreaking essays written by leaders in the field address the complex and contentious histories of forensic techniques. Contributors also examine the co-evolution of these techniques with the professions creating and using them, with the systems of governance and jurisprudence in which they are used, and with the socioeconomic, political, racial, and gendered settings of that use. Exploring the profound effect of "location" (temporal and spatial) on the production and enactment of forms of forensic knowledge during the century before CSI became a household acronym, the book explores numerous related topics, including the notion of burden of proof, changing roles of experts and witnesses, the development and dissemination of forensic techniques and skills, the financial and practical constraints facing investigators, and cultures of forensics and of criminality within and against which forensic practitioners operate.

Covering sites of modern and historic forensic innovation in the United States, Europe, and farther-flung imperial and global settings, these essays tell stories of blood, poison, corpses; tracking persons and attesting documents; truth-making, egregious racism, and sinister surveillance. Each chapter is a finely grained case study. Collectively, Global Forensic Cultures supplies a historical foundation for the critical appraisal of contemporary forensic institutions which has begun in the wake of DNA-based exonerations.

Table of Contents after the jump:

Felker-Kantor, "Policing Los Angeles"

Browsing the latest podcasts over at the New Books Network, I realized that we never posted an announcement about Max Felker-Kantor's Policing Los Angeles: Race, Resistance, and the Rise of the LAPD, which was published late last year by the University of North Carolina Press. Here's a description from the Press:

When the Los Angeles neighborhood of Watts erupted in violent protest in August 1965, the uprising drew strength from decades of pent-up frustration with employment discrimination, residential segregation, and poverty. But the more immediate grievance was anger at the racist and abusive practices of the Los Angeles Police Department. Yet in the decades after Watts, the LAPD resisted all but the most limited demands for reform made by activists and residents of color, instead intensifying its power. 

In Policing Los Angeles, Max Felker-Kantor narrates the dynamic history of policing, anti-police abuse movements, race, and politics in Los Angeles from the 1965 Watts uprising to the 1992 Los Angeles rebellion. Using the explosions of two large-scale uprisings in Los Angeles as bookends, Felker-Kantor highlights the racism at the heart of the city's expansive police power through a range of previously unused and rare archival sources. His book is a gripping and timely account of the transformation in police power, the convergence of interests in support of law and order policies, and African American and Mexican American resistance to police violence after the Watts uprising.

A few blurbs:

"A richly researched study, this book should be read by anyone hoping to understand the intensity of policing in Los Angeles since the 1965 Watts Rebellion. Using new archival finds, it is a page-turning chronicle of race, capitalism, and state violence in the heart of the city."--Kelly Lytle Hernandez 

"A deft combination of political and social history, Policing Los Angeles adds rich depth to the emerging histories of the expanding carceral state in the second half of the twentieth century. With the LAPD as subject, this book is at once a local and a national story of urgent significance."--Dan Berger

And here's the link to the New Books Network author interview.

-- Karen Tani

Holloway on Testimonial Incapacity and Criminal Defendants in the South

We typically don’t post on articles and essays that are inaccessible online, but social histories of evidence law don’t come along every day.  This one is Pippa Holloway, "Testimonial Incapacity and Criminal Defendants in the South," in Crime and Punishment in the Jim Crow South, ed. Natalie Ring and Amy Wood (University of Illinois Press, 2019), 107-129:

This article examines the history of two limitations on witness capacity in the US: prohibitions on court testimony by individuals with infamous or felony convictions and prohibitions on testimony by criminal defendants. Most states had eliminated these laws by the 1880s, but change took a regional pattern. Southern states were more likely than non-southern states to continue prohibitions on testimony by defendants and/or those with former convictions into the late nineteenth and, in some cases, twentieth century. During the 1880s, when most states were expanding access to witness testimony, Alabama, Arkansas and South Carolina narrowed it by barring witness testimony by individuals convicted of misdemeanor larceny. Tennessee prohibited individuals with infamous convictions from testifying in civil cases until 1953, a prohibition that also included misdemeanor larceny. The article begins with the case of a Tennessee coal miner who was denied workers compensation in 1941 because he could not testify to his injury due to a prior misdemeanor larceny conviction. Georgia's prohibition on defendant testimony stayed on the books until 1961 when the US Supreme Court struck it down in Ferguson v. State of Georgia. This chapter documents and offers an explanation for this instance of southern exceptionalism, arguing that it was rooted in the desire to deny legal and civil equality to African Americans that characterized the Jim Crow era.

Weekend Roundup

• A new issue (2:1) of The Docket–the online sidekick of Law and History Review–has gone live.  Check it out! 

• The American Council of Learned Societies has announced its fellows for 2019, among them Laura Edwards (for “Only the Clothes on Her Back: Textiles, Law, and Commerce in the Nineteenth-Century United States”); Amanda H. Frost (for “Unmaking Americans: A History of Citizenship Stripping in the United States”); Katherine Unterman (for "The Colonial Constitution: Law and Empire in the US Territories”); and Kimberly Welch (for “Lending and Borrowing Across the Color Line in the Antebellum American South”).

• YLS's John Fabian Witt's lecture, To Save the Country? National Emergencies from Lincoln to Trump, delivered at Columbia University’s Center for American Studies on March 28, is now up on YouTube.

• "Voices of the Movement" is a series of podcast interviews of "veterans of the civil rights movement" conducted by the Washington Post's Jonathan Capehart. Available now is episode 1: "The day Martin Luther King Jr. died."

• If you’re in the mood for a review essay with a point-of-view, try, while it’s still open access, Nan Enstad's The “Sonorous Summons” of the New History of Capitalism, Or, What Are We Talking about When We Talk about Economy? from Modern American History 2:1.  H/t: JLG 

• The Franklin D. Roosevelt Presidential Library and Museum and the International Labour Organization will present the symposium Together, We Win: FDR, Frances Perkins and the ILO at the Library’s Henry Wallace Center on Monday, April 15, 2019.

• Here’s some timely and unfortunately apt comparative constitutionalism: Lénárd Sándor, Chief Counsel to the Constitutional Court of Hungary and, currently, a visiting foreign fellow at the Federal Judicial Center, in conversation with Jeffrey Rosen.

• And, in other news from the FJC, check out the most recent addition to the Center's unit to our Famous Federal Trials series, U.S. v. Guiteau, written by Winston Bowman.

• ICYMI: In WaPo, Petula Dvorak’s appreciation of an exhibit on consumer advocacy at the National Museum of American History.   A Look at Dover [NH]’s Legal History, Courts, and Jurists. Sean Wilentz on "why a merciful God invented second editions."

• Postdoc opportunity at McGill's Indian Ocean World Centre: details here. The deadline is May 15, 2019.

• Also for early career scholars: Oxford's Centre for Socio-Legal Studies has a Call out for a "Law in Context" Early Career Workshop. Those applications are due July 10, 2019.

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

Grey on infanticide in 19th-c. England and Wales

Last year, Daniel J. R. Grey, University of Plymouth published " 'No Crime to Kill a Bastard-Child': Stereotypes of Infanticide in Nineteenth-Century England and Wales" in B. Leonardi's edited volume, Intersections of Gender, Class, and Race in the Long Nineteenth Century and Beyond (Basingstoke, Hampshire: Palgrave Macmillan, 2018), 41-66. From the introduction: 

Executions of English and Welsh women for infanticide during the 'long nineteenth century' (1789-1914) were very much an anomaly, not the rule, despite the fact that it remained a capital offence and indistinguishable from any other type of murder until 1922...Precisely because of the focus by many colonial critics during the nineteenth century on the supposed widespread danger of infanticide by indigenous peoples--especially targeting unwanted daughters--as a custom that only the so-called civilising mission and imperial rule could eradicate, any suggestions that there might be parallels between the killing of young children at home and similar homicides in the colonies were variously played down, ignored, or explicitly denied. Instead, English and Welsh women who committed the crime were routinely and emphatically emphasised to be 'normal,' frequently of excellent character, and cultural discourses stressed that such a defendant should often not be considered legally responsible for their crime, even if their circumstances did not actually fit with either legal or medical definitions of insanity. This chapter explores how and why a distressing crime which might theoretically have been singled out for particularly harsh treatment became, instead, stereotyped as a type of killing only ever committed by the 'normal' and 'respectable'--sometimes even the 'good'--in nineteenth-century England and Wales.

A short preview of the chapter is available here. 

Acevedo on American Crime Panics

John Felipe Acevedo, University of Alabama School of Law, has posted Witch-Hunts and Crime Panics in America:

The term witch-hunt has been tossed around by media commentators, policy experts, and even presidents for years — Nixon, Clinton, and Trump each in turn. Accusations of a witch-hunt are used to signal perceived bias, procedural unfairness, and paranoia. This Article argues that drawing simplistic connections between witchcraft trials and unfairness in the criminal justice system severely hampers our understanding of both historical and contemporary events. It obscures the fact that the term witch-hunt is popularly used to describe two very different types of prosecutions that reflect distinct social and legal problems and demand distinct solutions.

On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that reveals deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. In contrast, the ongoing special investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship on early American witch-hunts, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations, and highlights areas for future reform.

Munshi on White Slavery in an Age of Contract

Sherally Munshi, Georgetown University Law Center, has posted White Slavery and the Crisis of Will in the Age of Contract, which appeared in the Yale Journal of Law & Feminism 30 (2018): 327-69:

Recognizing human freedom is never as simple as acts of legal pronouncement might suggest. Liberal abstractions like freedom and equality; legal formulations of personhood, free will, and contract; the constructed divisions between public and private, self and other, home and market on which the former are predicated — these are often inadequate to understanding, let alone realizing, the shared aspirations they supposedly define. By the same token, the dense and dynamic relations of power that characterize any liberal society overwhelm and exceed our critical vocabulary. “Racism,” “sexism,” and “capitalism” powerfully name structures of inequality, but they fail to capture the full spectrum of social relations, practices, and exchanges that reproduce inequality — deep structures of feeling, unspoken common sense, the stories we tell ourselves about the world and our places in it. Focusing on an early twentieth-century case involving an immigrant convicted of “white slavery,” accused of “mesmerizing” his secretary, this Article explores the ways in which the white slave panic and spiritualist practices reflect a set of anxieties about the nature of agency and consent obscured by the universalizing and formalist abstractions of contract law and theory. Through a close reading of competing narratives surrounding the case, this Article seeks to investigate some of the ways in which the rhetorical distortions of law affect the lives of its most vulnerable subjects.

de la Rasilla on Quintiliano Saldaña Garcia-Rubio

Ignacio de la Rasilla, Wuhan University Institute of International Law, has posted International Criminal Justice as Universal Social Defence – Quintiliano Saldaña (1878-1938), which is forthcoming in The Dawn of a Discipline: International Criminal Justice and its Early Exponents, ed. Immi Tallgren & Frédéric Mégret (Cambridge University Press, 2019):

Quintiliano Saldaña Garcia-Rubio (1878-1938) was one of the leading proponents of ‘legal pragmatism’ in European criminal law circles in the interwar period and the author of the first course on international criminal justice delivered at The Hague Academy of International Law in 1925. This chapter examines the three main stages in Saldaña’s polyhedral intellectual life. The first part surveys Saldaña’s formative years and his early academic professional development, examining the influence of Franz von Liszt’s Marburg School of Criminal Law on his academic interests and professional career until the end of the First World War. The second part examines Saldaña’s seminal theory of ‘universal social defence’ and his 1925 Hague Academy course, La justice pénale internationale, which included one of the first projects for an international criminal code. It also reviews Saldaña's legislative contribution to the polemical 1928 Spanish Criminal Code project, which is widely considered an example of a proto-fascist criminal code. The third part follows Saldaña’s career during the Second Spanish Republic, surveying his criminal law and criminology work in the development of his theory of ‘legal pragmatism.’ It also revisits his engagement with the mid-1930s international legal debates on terrorism in the framework his contribution to the works of the International Bureau for the Unification of Criminal Law. The conclusion revisits the mysterious circumstances of Saldaña’s death during the Spanish Civil War and the dark legacy of his legal thought on the criminal law system of General Franco’s regime in Spain.

O'Brassill-Kulfan, "Vagrants and Vagabonds: Poverty and Mobility in the Early American Republic"

New from NYU Press: Vagrants and Vagabonds: Poverty and Mobility in the Early American Republic (Jan. 2019), by Kristin O'Brassill-Kulfan (Rutgers University). A description from the Press:

Vagrants. Vagabonds. Hoboes. Identified by myriad names, the homeless and geographically mobile have been with us since the earliest periods of recorded history. In the early days of the United States, these poor migrants – consisting of everyone from work-seekers to runaway slaves – populated the roads and streets of major cities and towns. These individuals were a part of a social class whose geographical movements broke settlement laws, penal codes, and welfare policies. This book documents their travels and experiences across the Atlantic world, excavating their life stories from the records of criminal justice systems and relief organizations.

Vagrants and Vagabonds examines the subsistence activities of the mobile poor, from migration to wage labor to petty theft, and how local and state municipal authorities criminalized these activities, prompting extensive punishment. Kristin O’Brassill-Kulfan examines the intertwined legal constructions, experiences, and responses to these so-called “vagrants,” arguing that we can glean important insights about poverty and class in this period by paying careful attention to mobility. This book charts why and how the itinerant poor were subject to imprisonment and forced migration, and considers the relationship between race and the right to movement and residence in the antebellum US. Ultimately, Vagrants and Vagabonds argues that poor migrants, the laws designed to curtail their movements, and the people charged with managing them, were central to shaping everything from the role of the state to contemporary conceptions of community to class and labor status, the spread of disease, and punishment in the early American republic.

A few blurbs:

"Americans in the early republic believed that their ability to move—geographically, socially, economically—was the essence of their freedom. They trusted that capitalism offered upward mobility and that an expansive republic would prove an empire for liberty in which law would protect property rights. Vagrants and Vagabonds offers an important corrective to these ideas. Capitalist transformation forced poor Americans to move often and in ways they did not necessarily choose. Vagrancy law limited their movements and curtailed their freedom. O’Brassill-Kulfan's important book reminds us that mobility helped to entrench inequality in the United States as much as it enabled American dreams." —Brian Luskey

"Kristin OBrassill-Kulfan’s study of the mobility of poor and otherwise unwanted members of society, and the efforts of authorities to dictate and control their movement, tells us much about the life of multiple subaltern groups in the antebellum U.S. in a way that is especially relevant today. She addresses forced migration, incarceration, and exclusion, bringing all of these issues of mobility together in a multifaceted study that should be required reading for anyone interested in early U.S. history, the carceral state, and poverty in the U.S. Her important book adds much to the historiography of a number of fields, including early U.S. history, labor history, racial and ethnic history, and poverty studies. It is essential reading for policy makers and political scientists today who want to understand the history of race- and class-based exclusion in the U.S." —Beverly Tomek

More information is available here.

Darr on Sexual Offences in Mandate Palestine

Out this month is Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine by Orna Alyagon Darr (Sapir Academic College, Israel and Ono Academic College, Israel) with Cambridge University Press. From the publisher: 

Plausible Crime Stories is not only the first in-depth study of the history of sex offences in Mandate Palestine but it also pioneers an approach to the historical study of criminal law and proof that focuses on plausibility. Doctrinal rules of evidence only partially explain which crime stories make sense while others fail to convince. Since plausibility is predicated on commonly held systems of belief, it not only provides a key to the meanings individual social players ascribe to the law but also yields insight into communal perceptions of the legal system, self-identity, the essence of normality and deviance and notions of gender, morality, nationality, ethnicity, age, religion and other cultural institutions. Using archival materials, including documents relating to 147 criminal court cases, this socio-legal study of plausibility opens a window onto a broad societal view of past beliefs, dispositions, mentalities, tensions, emotions, boundaries and hierarchies.

 Praise for the book:

 "This remarkable book, by one of Israel’s leading legal historians, explores the fascinating history of sex crimes in mandatory Palestine. Innovative and theoretically sophisticated, it is a must-read for historians of law, but also for anyone interested in the social and cultural context in which the law of evidence, and criminal law, are embedded." -Assaf Likhovski

"Darr’s masterful study of evidence law in Mandate Palestine decouples absolute truth from knowledge derived through its social context. With keen awareness of the differences among British colonials and Arab and Jewish subjects, she shows how sexual offenses pose particular challenges to courts. What we consider fact is often simply a legal presumption." -Steven Wilf

"This is a deft historical case study of the law in action in a colonial context with broad significance. Based on court records relating to sexual offences during the British Mandate in Palestine, Darr examines colonial and local attitudes to sex and its regulation in a multicultural situation and shows that whether evidence and narratives are accepted as plausible is intimately related to the local political, social and religious context." -William Twining

Further information is available here.

Special Issue: Law and Legality in Modern India

A special issue on "Law and Legality in Modern Indian History" has come out in Comparative Studies of South Asia, Africa and the Middle East (2018) 38:3. It is edited by Alastair McClure (University of Chicago) and Saumya Saxena (Law Commission of India/University of Cambridge). 

Here's the line-up with abstracts:

• Alastair McClure and Saumya Saxena, "Introduction: Law and Legality in Modern Indian History": This introduction offers a critical survey of existing literature on law in modern India and presents an overview of the four essays in the special section, which illustrates new directions in the field of Indian legal history.

• Upendra Baxi, " 'Touch It Not, If You Are Not a Historian.' Toward a New Historiography of Colonial Indian Law: Recrafting Clio": This conversation is largely about the ways of doing and writing histories: whether legal/juridical or social histories of law. The difference between the two genres is briefly explored in Baxi’s essay, but obviously more collaborative work is needed. As concerns histories of human rights, it would seem the mainstream and the varying dissident crafts of writing history have largely ignored the micro stories of cruelties in state and civil society. How periodization poses many a challenge to the craft of writing histories of law is explored, as are the interplays in writing history between subjection and resistance in colonial and postcolonial times. The text highlights the need for a new (and ongoing) debate about the viability of subaltern studies of history and history writing.

• Alastair McClure, "Sovereignty, Law, and the Politics of Forgiveness in Colonial India, 1858-1903": The Queen’s Proclamation in 1858, her first gesture as the sovereign figurehead of India, offered amnesty to large numbers of those involved in the rebellion. From this point, the royal figure would be invoked at jubilee celebrations and royal durbars, offering royal pardon to prisoners. On these occasions, up to 10 percent of prisoners were released. Indicative of the broader refashioning of colonial rule that occurred after the rebellion, this essay examines these rare but spectacular events by positioning the history of pardon within the wider structure of colonial law and sovereignty. It attempts to do this by drawing out a symbiotic relationship tying together the employment and nonemployment of physical violence, placing the sovereign right to punish and kill within the same analytical lens as the ensnaring promise of forgiveness.

• Leigh Denault, "Little Republics or Petty Republics?: The Panchayat, Imperial Sovereignty, and Discourses of Self-Government in British India, ca. 1870-1917": Alternately seen as a local-level court of arbitration, a union or committee, or village or municipal council, the concept of the South Asian panchayat was a sociopolitical and legal palimpsest. Retaining traces of meaning accrued from multiple incarnations, contestations, and appropriations, it would become a touchstone for early Indian liberals, radicals, and nationalists, as well as for imperialists concerned with the local devolution of sovereignty. Colonial definitions and redefinitions, however, obscure as much as they reveal about the multiple and shifting meanings of the panchayat for colonized subjects. The panchayat has been seen as primarily a product of Orientalist imagining—ultimately adopted, in an act of strategic essentialism, by Indian nationalists at the end of the nineteenth century. But it was never solely a product of the colonial imagination. Rather, colonial experimentation with older discourses on the panchayat in the context of drives for local governance sparked a more substantive set of reassessments that would transform discourses of law, state, and society in colonial and postcolonial India.

• Saumya Saxena, "Commissions, Committees, and Custodians of Muslim Personal Law in Postindependence India": Shah Bano was sixty-three years old when her husband divorced her in 1978. He refused to pay maintenance to her beyond a period of three months (iddat), claiming his obligation extended no further than three menstrual cycles of his wife’s. While the court decided in favor of granting maintenance to Shah Bano in 1985, Parliament subsequently overturned the judgment through the Muslim Women’s Act, 1986, to create alternate provisions. The case triggered a tremendous wave of protests simultaneously, against unfair provisions of Muslim law and against the state’s interference in matters of religion. This essay documents the prehistory of this iconic case to demonstrate that neither the controversy nor the judgment was novel, as scholarship has repeatedly claimed. Family law had historically been a contentious arena that enabled conversations between the state and religion, courts and Parliament, and diverse social movements and coreligionists, engaging all institutions central to Indian democracy.

Further information is available here.