An Essay Collection on Blackstone and His Critics

Just out from Hart is Blackstone and His Critics, edited by Anthony Page, University of Tasmania, and Wilfrid Prest, emeritus, University of Adelaide:

William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10,000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014).

This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.

To get a 20% discount, order here and use the code CV7 at the checkout.

TOC after the jump.

Burset, "Why Didn't the Common Law Follow the Flag?"

Christian Burset, a Ph.D. candidate at Yale University and currently a Golieb Fellow at New York University School of Law, has posted "Why Didn't the Common Law Follow the Flag?" The article is forthcoming in the Virginia Law Review (2019). Here's the abstract:

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British Empire selectively transplanted English law to the colonies it acquired during the eighteenth century. The extent to which each colony received English law depended on a political decision about what kind of colony policymakers wanted to create. Eighteenth-century observers agreed that English law could turn any territory into an anglicized, commercial colony on the model of Britain's North American settlements. Preserving preexisting laws, in contrast, would produce colonial economies that enriched the empire as a whole but kept local subjects poor and politically disadvantaged. By controlling how much English law each colony received, British officials hoped to shape its economic, political, and cultural trajectory. This historical account revises not only our understanding of how the common law spread but also prevailing ideas about law's place in development policy today.

The full article is available here.

Hulsebosch on Constitutionalism and Foreign Capital Investment in the Early Republic

Daniel J. Hulsebosch, New York University School of Law, has two new posts.  The first is From Imperial to International Law: Protecting Foreign Expectations in the Early United States and appears in UCLA Law Review Discourse 65 (2018): 4-18:

This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations. They negotiated such problems as the currency in which international debts would be paid; the ability of foreign creditors pursue domestic collection remedies; whether creditors had to exhaust those remedies before their nation could resort to international arbitration; and the form of state-state arbitration of private disputes. The specific setting of these negotiations — the aftermath of a colonial settler revolution — narrowed the compass of disagreement, compared to many later postcolonial negotiations. In addition, the negotiations assumed that the exhaustion of national remedies remained the standard method of resolving private debt disputes. Notwithstanding these important differences, the principles and institutions developed after an imperial civil war influenced the development of international investment law.

The second is Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation, which appears in the William & Mary Law Review 59 (2018): 1239-1319:

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution — at least, the Federal Constitution — might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope. Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, self discipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with the conventional account of the American Founding, just an intramural affair? This Article argues that many foreigners did notice, not least because some of them had participated in the process of reform. Although no foreigners intervened directly in drafting or ratification, international demands, incentives, and reactions shaped the way that leading American Framers pursued constitution making. After a “foreign ratification debate” that stretched into the first years of the Washington Administration, Britain normalized diplomatic relations with the United States and substantial capital investment followed. In 1791, the British Board of Trade approvingly analyzed the Constitution in a report designed to guide the Privy Council as it drafted instructions for its first official envoy to the United States. Within fifteen years, Britons were the largest holders of foreign investment in the United States, including state and federal “domestic debt,” or the restructured wartime certificates and loans that had floated the Revolution. In sum, Britons ultimately financed much of the project of American independence, and contemporaries believed that these credit relations would reduce, without eliminating, the prospect of renewed war.

O'Melinn on the Common-Law Origins of Copyright

Liam O'Melinn, Ohio Northern University, has posted The Ghost of Millar v. Taylor: The Mythical Common Law Origins of Copyright and the Copyright Servitude:

The Ghost of Common Law Copyright walks abroad once more, relishing the prospect of “the next great copyright act” and tempting us to inquire anew whether the origins of copyright are to be found in the common law. Despite being answered time and again in the negative, this question preys upon modern sensibilities predisposed to the view that artists who painted on the walls of ancient caves had a primordial right to prevent “pirates” from copying their works. The belief that the common law has always provided creators with a right against unauthorized reproduction is quietly but increasingly influential, and it has helped to propel copyright law toward limitless expansion. According to the common-law view, most famously expressed in Millar v. Taylor in England in 1769, this right antedates any positive enactments made on its behalf, and the earliest copyright statutes simply secured or augmented rights already in existence. Millar was overruled in Donaldson v. Becket in 1774, but its spirit has lingered on, haunting the legal landscape of copyright. This theory has served as the basis of an increasing tendency toward the retrospective creation of property in nearly any “subject matter” -- as this copyright theory describes cultural exchange -- that is perceived to be of potential value. The common law view has made its influence felt in a distension of culture, a distortion of the law, and a tendency to create a boundless form of property. This property without bounds, in turn, is justified by the recursive insertion of an author or creator whose original right provides the ostensible basis of current title.

In American law this approach has rested on three propositions: That authors in England always had a right to prevent unauthorized publication of their writings, that Americans carried this right with them from England to their new colonies in the seventeenth and eighteenth centuries, and that as between the two landmark decisions in English copyright law, Millar v. Taylor and Donaldson v. Beckett, Americans chose the view taken in Millar that copyright was a perpetual right originating in the common law. This final claim is ostensibly bolstered by the belief that Americans knew the result in Millar but not in Donaldson, and that when they began to pass their own copyright statutes they were passing the familiar common law result into law. This article focuses on these claims, arguing that there was no common law copyright before the passage of the Statute of Anne, and no norm prohibiting unauthorized publication. It would be closer to the mark to say that unauthorized publication was the norm, and that our timeless right of first publication is actually a much more modern and statutory creature than we have imagined. Americans had no common law inheritance to carry with them to the colonies, and they actually did know the result in Donaldson shortly after it was decided, leaving no reason to believe that American copyright law followed the Millar decision.

The article concludes with a consideration of the modern implications of the success of the myth of common law copyright. These include a distortion of culture to make it fit the contours of copyright law, the increased dedication of the law to the protection of a species of property that knows no bounds, and the imposition what I term the “copyright servitude,” which protects the interests of copyright holders by limiting the uses that can be made even of lawfully-purchased products, and by impeding the development of alternative means of transmission of information.

Research Handbook on History of Corporate and Company Law

We've recently learned of the publication of Research Handbook on the History of Corporate and Company Law (Edward Elgar Publishing), edited by Harwell Wells, Temple University, James E. Beasley School of Law:

Understanding the corporation means understanding its legal framework, but until recently the origins and evolution of corporate law have received relatively little attention. The topical chapters featured in this Research Handbook, contributed by leading scholars from around the world, examine the historical development of corporation and business organization law in the Americas, Europe, and Asia from the ancient world to modern times, providing an invaluable resource for both further historical research and scholars seeking the origins of present-day issues.

Today, the corporation plays a dominant role in economics, politics, and societies across the globe. Understanding the corporation means understanding its legal framework but until recently, the origins and evolution of corporate law have received relatively little attention. This Handbook sheds new light on the historical development of both the corporation and business organization law.

This extensive collection brings together contributions from an array of international academics to provide the first wide-ranging history of the laws of corporations and business organizations from ancient to modern times. The contributors offer a global exploration of the development of corporation and company law, moving beyond the United States and Western Europe to present studies in Mexico, India and China, as well as addressing the trajectory of scholarly debate. Not only do the contributions examine the growth of the law of public corporation, they also address the development of laws governing other business forms.

This Handbook will prove an invaluable resource for corporation law and business scholars, as well as business and legal historians and economists.

TOC is here.

Thomas Responds to Tidmarsh on English Fire Courts and Article III

Suja A. Thomas, University of Illinois College of Law, has posted The Limits of History: The English Fire Courts, Congress, the Seventh Amendment Civil Jury Trial, which appeared in the University of Chicago Law Review Online 83 (2018): 281-95.  It is a response to Jay Tidmarsh, The English Fire Courts and the American Right to Civil Jury Trial, 83 U Chi L Rev 1893 (2016).

Can Congress create Article III courts to decide civil cases where plaintiffs claim damages that are related to certain crises, such as the mortgage crisis--thus, shifting those cases from juries to judges to decide? Jay Tidmarsh said yes in an article published in the University of Chicago Law Review. He did not properly consider, however, the limits of history's influence on the Seventh Amendment. This article describes those limits and the actual conditions for the right to a jury trial in the late eighteenth century--the relevant time period for determining the scope of the jury trial. It further shows that Congress does not have the significant authority to usurp the jury for which Tidmarsh has argued.

Turner on the corporation in early modern England

We missed this one in 2016. Henry S. Turner, Rutgers University has published The Corporate Commonwealth: Pluralism and Political Fictions in England, 1516-1651 with the University of Chicago Press. From the publisher: 

The Corporate Commonwealth traces the evolution of corporations during the English Renaissance and explores the many types of corporations that once flourished. Along the way, the book offers important insights into our own definitions of fiction, politics, and value.     

Henry S. Turner uses the resources of economic and political history, literary analysis, and political philosophy to demonstrate how a number of English institutions with corporate associations—including universities, guilds, towns and cities, and religious groups—were gradually narrowed to the commercial, for-profit corporation we know today, and how the joint-stock corporation, in turn, became both a template for the modern state and a political force that the state could no longer contain. Through innovative readings of works by Thomas More, William Shakespeare, Francis Bacon, and Thomas Hobbes, among others, Turner tracks the corporation from the courts to the stage, from commonwealth to colony, and from the object of utopian fiction to the subject of tragic violence. A provocative look at the corporation’s peculiar character as both an institution and a person, The Corporate Commonwealthuses the past to suggest ways in which today’s corporations might be refashioned into a source of progressive and collective public action.

Praise for the book: 

“This is a major book by a major scholar. Turner takes up the corporate concept as an artifact of law, science, and literature and studies its transformations and deep impact in the early modern period with an eye to the continued prevalence of corporate thinking and corporate functions today. Breathtakingly ambitious, The Corporate Commonwealth addresses a huge spectrum of English intellectual history with great learning and insight and reminds us that corporations and corporate-like forms take many shapes. A must-read.” -Julia Reinhard Lupton

“The Corporate Commonwealth is an excellent work, one that stands in a present moment that has seen a tremendous increase in the power and scope of corporate forms. Turner devotes extraordinarily careful and nuanced attention to the relationship between individuals and collectivities in the century and a half between More’s Utopia and Hobbes’s Leviathan. This book is truly exhilarating in the way that it makes familiar texts seem fresh and new.” -John O'Brien

Further information is available here.

Turner on Fusion and the Penalty Doctrine

P. G. Turner, University of Cambridge, St. Catharine's College, has posted Lex Sequitur Equitatem: Fusion and the Penalty Doctrine:

Since an early article of Professor Brian Simpson’s, the opinion of historians and lawyers has been that the penalty doctrine which disallows the enforcement of penal stipulations in voluntary transactions derives from a fusion of law and equity. Specifically, the doctrine derives from ‘fusion by convergence’: the independent development by separate courts of law and courts of equity of similar rules concerning relief from penalties.

Under Simpson's account, the penalty doctrine has become a model of the fusion of law and equity dating to the life of equity's ‘father’, Lord Nottingham. On that account, after transacting parties began using them in the fourteenth century, English law condoned the use of penalties in voluntary transactions for upwards of one century. Slowly the Court of Chancery found situations in which it would be inequitable to condone the penalty: at first because of special circumstances, later simply because the penalty was a penalty. The common law soon followed, inverting the maxim aequitas sequitur legem. By the last quarter of the seventeenth century, the common law courts routinely relieved against penalties, and by the turn of the nineteenth century had taken over the bulk of such litigation. The penalty doctrine became a common law doctrine solely or nearly so.

Half a century after its publication, Simpson’s thesis requires examination. This paper suggests that Simpson’s account and the current understanding that flows therefrom are false. On the basis of a fuller examination of printed and unprinted reports and manuscript sources of the Court of King’s Bench and Court of Chancery than previously made, this paper redraws the account of the development of the penalty doctrine. The evidence shows that: penalties were routinely enforced in common law courts until the end of the eighteenth century; all “common law” relief in the royal courts depended on statutes under which the judges applied equitable principles borrowed from the Court of Chancery; reliance on statutory power to grant relief at common law continued after 1875 in “Judicature Act courts”; but the repeal of those statutes means that the only source of principle for relief from penalties in England today are principles of equity.

Simpson’s suggestion that the penalty doctrine is a product of “fusion” is mistaken: in the modern period, there has been no judge-made common law of relief from penalties with which the equitable doctrine could fuse. As Parliament has directed that those equitable principles shall continue to apply, fusion is a distraction from the application and development of the (equitable) penalty doctrine.

Hawk on English Competition Law before 1900

Barry E. Hawk, Fordham University School of Law, has posted English Competition Law before 1900, which is forthcoming in the Antitrust Bulletin:

English competition law before 1900 developed over the course of many centuries beginning in the medieval period. That development reflected changes in political conditions, economic theories, and broader cultural values. English competition law mirrored the historical movements in England from the medieval ideal of fair prices and just wages to 16th and 17th century nation state mercantilism to the 18th and 19th century Industrial Revolution, laissez faire capitalism and freedom of contract. The development of English competition law is rich in insights for modern antitrust issues like the adaptability of case law and legislation to changing economic conditions, the role of economic theories in the formulation of legal rules, and the role of political and social values in competition policy.

Today the predominant if not exclusive emphasis on economics in the application of modern antitrust laws has resulted in a quasi-regulatory system far more technical, specialized and narrowly focused than the case making of generalist English common law judges. Modern antitrust law adapts well to changes in economic theories and conditions but it is less adaptable than English common law to shifts in political and social values. This lack of adaptability is viewed by most commentators as a beneficial insulation of decision-making from political or social influences. Proponents of non-economic policy concerns (like fear of concentration for political or social reasons), on the other hand, are forced to formulate their concerns in economic terms because of the prevailing view that only economics counts in antitrust. They would have had an easier task under the English common law.

Chapman on Milton & early modern law

Alison A. Chapman, University of Alabama at Birmingham, has published The Legal Epic: Paradise Lost and the Early Modern Law with the University of Chicago Press. From the publisher:

The seventeenth century saw some of the most important jurisprudential changes in England’s history, yet the period has been largely overlooked in the rich field of literature and law. Helping to fill this gap, The Legal Epic is the first book to situate the great poet and polemicist John Milton at the center of late seventeenth-century legal history. 

Alison A. Chapman argues that Milton’s Paradise Lost sits at the apex of the early modern period’s long fascination with law and judicial processes. Milton’s world saw law and religion as linked disciplines and thought therefore that in different ways, both law and religion should reflect the will of God. Throughout Paradise Lost, Milton invites his readers to judge actions using not only reason and conscience but also core principles of early modern jurisprudence. Law thus informs Milton’s attempt to “justify the ways of God to men” and points readers toward the types of legal justice that should prevail on earth. 

Adding to the growing interest in the cultural history of law, The Legal Epic shows that England’s preeminent epic poem is also a sustained reflection on the role law plays in human society.

Praise for the book:

“This is a terrific piece of scholarship. Chapman makes a very strong case for Milton's intimate familiarity with English and Continental law; his commitment to a natural law position that insisted upon the fundamental connection among human law, right reason, and divine law; and the relevance of legal concepts to Paradise Lost. The Legal Epic will fundamentally change how we read Milton's poem.” –Debora K. Shuger

“Chapman’s excellent study of Paradise Lost as a ‘legal epic’ raises the bar. She defamiliarizes the poem by demonstrating just how much it is interpenetrated by Milton’s self-confident and precise understanding of daily legal practice. Urging us to remember that he was the son of a scrivener and the brother of a judge, her book reveals a Milton whose profound sense of contingency and God’s grace never obscures his imaginative engagement with the intricacies of the law.” –Paul Stevens

“More deeply than any other study, The Legal Epic illuminates the ways Milton creatively employs and transforms the language and principles of early modern law in Paradise Lost.  Chapman persuasively shows that understanding Milton’s use of legal language and concepts in relation to theology is crucial to understanding his poetic theodicy.  This interdisciplinary book is a major contribution to Milton studies and to the study of early modern literature and law.  An outstanding achievement.” –David Loewenstein

Further details are available here. 

CFP: Legal History and Empires: Perspectives from the Colonised

[We're moving this post up because the deadline for submitting proposals has been extended to January 30, 2018.]

The conference "Legal History and Empires: Perspectives from the Colonised" will be held at the University of the West Indies, Cave Hill Campus, in Barbados from July 11 to 13, 2018. The conference is jointly sponsored by the Faculty of Law and Faculty of Humanities and Education of The University of the West Indies, Cave Hill Campus, and an international group of legal historians and historians of the law.  [The keynote speaker is] Dr. Maya Jasanoff, Coolidge Professor of History, Harvard University.

This conference follows the successful conference on the Legal Histories of the British Empire held at the National University of Singapore in 2012, and is similarly designed to bring together senior and emerging scholars working in the fields of imperial and colonial legal history. We invite paper or panel proposals addressing legal histories of empires broadly, and encourage participants to think in particular how their research connects with the theme of the conference: perspectives from the colonized.  Without in any way limiting the range of proposals topics and themes might include: relations between Empires; histories from the peripheries of empire; mobilities, networks and transplants; law and gender; Indigenous histories and the law; slavery and indentured labour; regulation of labour; histories of immigration law; administration of justice and rule of law; histories of public or private law; colonial law and local circumstances; settler colonialism; crime; the professions.

Individual paper proposals should be maximum 300 words (and include a bio of no more than 100 words); panel proposals should consist of an overall panel theme (300 words), the titles of individual papers and short bios (no more than 100 words) of each presenter. Panels may include commentators. Proposals should be sent to Prof Shaunnagh Dorsett, University of Technology Sydney (Shaunnagh.Dorsett@uts.edu.au) by 30 JANUARY 2018.

General inquiries about the Conference should be addressed to Dr. Asya Ostroukh, UWI, Cave Hill (asya.ostroukh@cavehill.uwi.edu).  The Conference website is [here.]  (Information, including accommodation options and additional optional activities on July 10 and 14 will be available soon.)

Essays on the History of Parliamentary Procedure

Just out from Hart Publishing is Essays on the History of Parliamentary Procedure: In Honour of Thomas Erskine May, edited by Paul Evans, who is the Clerk of Committees in the House of Commons in Westminster:

8 February 2015 marked the 200th anniversary of the birth of Thomas Erskine May. May is the most famous of the fifty holders of the office of Clerk of the House of Commons. His continued renown arises from his Treatise upon the Law, Privileges, Proceedings and Usage of Parliament, first published in 1844 and with its 25th edition currently in preparation. It is known throughout those parts of the world that model their constitutional arrangements on Westminster as the 'Bible of Parliamentary Procedure'. This volume celebrates both the man and his book. Bringing together current and former Clerks in the House of Commons and outside experts, the contributors analyse May's profound contribution to the shaping of the modern House of Commons, as it made the transition from the pre-Reform Act House to the modern core of the UK's constitutional democracy in his lifetime. This is perhaps best symbolised by its enforced transition between 1834 and 1851 from a mediaeval slum to the World Heritage Palace of Westminster, which is the most iconic building in the UK.

The book also considers the wider context of parliamentary law and procedure, both before and after May's time. It constitutes the first sustained analysis of the development of parliamentary procedure in over half a century, attempting to situate the reforms in the way the central institution of our democracy conducts itself in the political contexts which drove those changes.

Table of Contents after the jump.

Nolan on the Fatal Accidents Act

Donal Nolan, University of Oxford Faculty of Law, has posted The Fatal Accidents Act 1846, which appeared in Tort Law and the Legislature, TT Arvind and Jenny Steele ed. (Hart 2012), 131-157:

This chapter is a historical analysis of the Fatal Accidents Act 1846, which for the first time gave the relatives of a person who had been wrongfully killed a right to compensation from the wrongdoer. I argue that criticisms of the 1846 Act are largely groundless, and that giving the relatives of the deceased claims in tort was a pragmatic and rational response to the problem of wrongful death in the mid-nineteenth century. Furthermore, I argue that from the standpoint of legal analysis, the formula for recovery employed in the legislation was appropriate and effective, and that the legislation was a progressive measure, which had beneficial social effects. It is shown that the immediate catalyst for the legislation was the desire to protect the interests of the families of those who perished in mining accidents, and more generally it is argued that the passage of the Act was motivated by the humanitarian desire to reduce the incidence of fatal accidents and to make provision for those affected by them when they did occur. I conclude that the advent of the wrongful death action was an important and welcome development in the law of tort, which was appropriately brought about through legislative intervention.

Black on Mercy and an Irish Murderess

Just out as a “first view” from Law and History Review on the Cambridge Core is “On the other hand the accused is a woman…”: Women and the Death Penalty in Post-Independence Ireland, by Lynsey Black:

Hannah Flynn was sentenced to death on February 27, 1924. She had been convicted of the murder of Margaret O'Sullivan, her former employer. Hannah worked for Margaret and her husband Daniel as a domestic servant, an arrangement that ended with bad feeling on both sides when Hannah was dismissed. On Easter Sunday, April 1, 1923, while Daniel was at church, Hannah returned to her former place of work, and killed 50-year-old Margaret with a hatchet. At her trial, the jury strongly recommended her to mercy, and sentence of death was subsequently commuted to penal servitude for life. Hannah spent almost two decades in Mountjoy Prison in Dublin, from where she was conditionally released on October 23, 1942 to the Good Shepherd Magdalen Laundry in Limerick. Although there is no precise date available for Hannah's eventual release from there, it is known that “a considerable time later,” and at a very advanced age, she was released from the laundry to a hospital, where she died. The case of Hannah Flynn, and the use of the Good Shepherd Laundry, represents an explicitly gendered example of the death penalty regime in Ireland following Independence in 1922, particularly the double-edged sword of mercy as it was experienced by condemned women.

Lewis on Gender Reassignment Surgery

The latest advance alert from the American Journal of Legal History is The Lawfulness of Gender Reassignment Surgery, by Penney Lewis, King’s College, London:

In the common law world, both the medical and legal professions initially considered gender reassignment surgery to be unlawful when first practised and discussed in the first half of the twentieth century. While most medical procedures are covered by the medical exception to the law governing serious offences against the person, many doctors and the lawyers they consulted doubted that this exception applied to gender reassignment surgery. In this article I trace the differing and changing interpretations of the medical exception as applied to gender reassignment surgery, and the shift towards legal acceptance in the two common law jurisdictions that led the way in both performing gender reassignment surgery and debating its legality, the United States and the United Kingdom. Although this shift occurred without formal legal intervention either through legislation or judicial decision (for example on a test case), inferences of legality drawn from related civil-law decisions bolstered the legal acceptance of gender reassignment surgery.

By increasing the suffering of patients and potential patients, the criminal law played both an important and primarily malign role prior to the eventual public, professional and legal acceptance of GRS. A real threat of criminal prosecution inhibited doctors from proceeding, distorted diagnoses and affected the kinds of procedures performed. After-care was expanded and manipulated to avoid the risk of prosecution or the appearance of unlawful surgery. By contrast, civil and administrative law played a more positive, albeit indirect, role in interpreting the medical exception and its application to gender reassignment surgery.

Gainford on the Birth of Female Criminality

Amy Gainford, University of Leeds, School of Law, has posted Mad, Bad or Sad? The Historical Persecution of Women and the Birth of Female Criminality:

Throughout history the notion of the ‘female criminal’ has been something of a taboo, an almost morbid curiosity to male dominated societies. As such through misogynist crusades they have attempted to eradicate the world of any women who did not meet the criteria that society dictates. Women who were outspoken and passionate were condemned. Numerous methods were employed to keep women in their place. From the early persecution of witch-hunts in the 15th-17th century to the medicalization of their melancholy in the Victorian era, women were suppressed. Early criminologists ‘discovered’ the biological elements of female criminality and contemporary Criminal Justice System and the mainstream media perpetuated this image. In doing so the disdain from the general public towards criminal women has grown. Often the combination of public hatred and the media’s macabre portrayal creates something of a modern day witch-hunt against these women. Perhaps this is because events of the past ‘demonstrate’ women behaving badly or because of misogyny so deeply ingrained within out society that we cannot escape it. These beliefs that women are fundamentally, biologically evil have seeped into mainstream societal systems that aim to serve the people but instead persecute an entire sub-section of society.

Toronto Remembers John Beattie

John Maurice Beattie: Giant of British legal history taught at U of T for 35 years, an appreciation of Professor Beattie, is now up on the University of Toronto's website.  It commences:

Those who knew John Maurice (J.M.) Beattie say he showed genuine interest in the lives of others: family, friends, acquaintances – and people who lived centuries ago.

Beattie, who died in July of this year, was a professor of history at the University of Toronto for 35 years and a former director of its Centre for Criminology and Sociolegal Studies. In academic circles, he was known from Australia to England for his pioneering work on the history of the British courts, crime and policing.

More.

Freedman's "Making Habeas Work"

And, while we’re on the subject, we might as well mention that Making Habeas Work: A Legal History, by Eric M. Freedman, Hofstra Law, is due out in May from NYU Press.

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

Professor Freedman's recent lecture on the book is here.

Tyler's "Habeas Corpus in Wartime"

Amanda L. Tyler, University of California, Berkeley School of Law, has published Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017):

Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law, particularly during World War II when the United States government detained tens of thousands of Japanese American citizens and later during the War on Terror. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.

Professor Tyler has posted the introduction on SSRN.  Gerard N. Magliocca’s appreciation on Balkinization is here;  James Pfander's review for Lawfare is here.  Among the many strong endorsements are the following:

 "Amanda Tyler has written the definitive political and legal history of the writ of habeas corpus during war, from its modern origins in the seventeenth century England to its contemporary use by U.S. courts to check the Commander in Chief in the post-9/11 era. Since the writ's history is so relevant to its modern scope, Habeas Corpus in Wartime will be an indispensable guide for lawyers, judges, and scholars of various stripes who grapple with the meaning of the Great Writ." - Jack Goldsmith, Henry L. Shattuck Professor of Law, Harvard Law School

"This meticulously researched book shows how America's Founding Fathers constitutionalised the English Habeas Corpus Act, which provided that only parliament could suspend the writ of liberty. In a series of studies which are rich both in illustration and insight, Amanda Tyler shows how the long-held understanding of the Suspension Clause came under pressure in the twentieth century. The history she has written is not only fascinating in itself, but has important ramifications for contemporary debates on liberty and the constitution." - Michael Lobban, Professor of Legal History, London School of Economic

Cultural Norms, Property Institutions, and Patterns of Economic Development

Having been an avid reader of the Legal History Blog for many years now, I am delighted to be guest blogging this month.  Many thanks to Karen, Mitra, and Dan for the invitation!

As some LHB readers may have noticed, my first book, The Laws and Economics of Confucianism: Kinship and Property in Pre-Industrial China and England, has recently been published by Cambridge University Press.  As is customary for LHB guest bloggers, I will use my initial post to say a few things about the book.  Later posts will move beyond this to explore methodological challenges unique to the intersection of institutional and economic history, and to some of the intellectual trends that now seem to distinguish Asian legal history (particularly East Asian legal history) from American and European legal history.

The book seeks to explain why certain Chinese property institutions in the early modern era--defined as roughly the 150-200 years before industrialization--were significantly more "poor-friendly" than functionally similar institutions in early modern England.  That is, they protected the economic and social interests of smallholders over those of wealthier landowners.  Most notably, Chinese customary laws governing mortgage transactions gave debtors (who were usually smallholders in this period) extremely strong protections against default and seizure, thereby minimizing the economic risks involved with collateralized borrowing.  In contrast, early modern English laws decisively favored the interests of the (usually wealthier) creditor, who tended to desire limited redemption rights and harsh penalties for default.  Over the long run, this institutional divergence led the English agrarian economy down a path of escalating inequality, with a small minority of landholders owning the vast majority of arable land by 1750.  Chinese agriculture, on the other hand, resisted agglomeration throughout the early modern era, remaining smallholder-heavy until collectivization in the early Communist era.

The core of the book is devoted to explaining this institution comparison.  The explanation relies on differences in social status allocation: existing evidence strongly suggests that smallholders held, on aggregate, significantly greater amounts of sociopolitical status and power in rural China than they did in rural England, and were therefore able to negotiate more favorable property institutions.  The dominance of Neo-Confucian social hierarchies in Late Imperial and Republican China, under which advanced age and generational seniority were the primary determinants of sociopolitical status, allowed many poor but senior individuals to possess status and political authority highly disproportionate to their wealth. In comparison, landed wealth was a fairly strict prerequisite for high status and authority in the far more 'individualist' society of early modern England, essentially excluding low-income individuals from secular positions of prestige and leadership. Thus, whereas smallholders had some level of representation among the local political elite in rural China, they had virtually none in England.  For the negotiation of property institutions that triggered substantial amounts of rich-poor conflict--mortgage redemption, tenancy, and so on--this could make all the difference.

The primary explanatory factor here is the seniority-based status hierarchy enshrined in Neo-Confucian ethics (hence the title "The Laws and Economics of Confucianism"): senior relatives within any kinship group were supposedly superior--socially, politically, and legally--to younger ones, parents to children, uncles to nephews.  The book shows how this led to a general norm of gerontocracy in local communities, and from there to "poor-friendly" property institutions.  It also argues in some detail that these status-distribution norms were fundamentally "cultural," in that, by at least the 17th Century, their popularity and influence was predominantly the product of widespread cultural internalization, rather than the equilibrium outcome of some material self-interest-based political economy.  For the vast majority of rural households, seniority-based social hierarchies were simply "right," so fundamental to their moral worldview that very few people dared challenge its legitimacy.

The book therefore seeks to link cultural commitments to legal change, and then to patterns of economic development.  It has many thematic connections to, but does not directly seek to explain, the early modern economic divergence between China and England that has driven an enormous amount of recent academic debate.  That literature has moved decisively against Weberian cultural paradigms in recent decades, but nonetheless remains enamored of institutional explanations for economic change.  If it continues to do so, then this book may serve as a cautionary note against rejecting cultural analysis in absolute terms.  Underlying cultural commitments can influence the shape and content of economic institutions even when those institutions themselves are not commonly thought of in moralistic or cultural terms.