Anna Moscowitz Kross (1891-1979)

[Long-time readers of LHB know that each year I research and write a biographical essay for my legal history exam.  If you'd like to read prior ones, start here.  This year's follows.  DRE]

Anna Moscowitz Kross (1891-1979) was born in what is now Belarus but at the time was part of Russia, to a tailor and his wife, Maier and Esther Moscowitz.  To avoid escalating violence and discrimination, the family emigrated to the United States in 1893.  Her two sisters died during the Atlantic crossing.  The family settled in a crowded neighborhood in the Lower East Side of New York City.  Every member of her family worked to supplement Maier’s meager wages.  After school,” a journalist later reported, “Anna came home and sewed on dresses or made buttons.”  In high school she tutored other immigrants in English and worked nights in a suspender factory, although she never worked on Saturday, the Jewish sabbath.  She enrolled in New York City’s leading teachers’ college but quit when the instruction bored her.  Instead, in 1907, at the age of 16, she enrolled in the NYU Law School, where, after her first year, she won a scholarship.  When she entered her first class, Ashe chose a seat near the door, so she would not have to pass through rows of men, who stared at her as if she were some strange being.”  She continued to teach English to immigrants by day but studied law by night.  AI was in a strange land, a foreigner,” she explained.  “I had to show Americans that Russian Jews have stuff in them worth developing.”

When Moscowitz received the second of two law degrees in 1912, she was still so young that she had to wait another six months to be admitted to the bar.  After she was, no law firm she approached would hire her, even though she advertised in a legal newspaper that she would accept any salary.  For two years, she clerked in the law office of a friend for no pay and then struck out on her own.  She also promptly joined the precursor to the National Association of Women Lawyers.

“She had worked and mingled with men all her life,” reported a journalist who profiled her in 1917, “so it was not a strange thing for her to be in the law profession with them.”  “Let woman go about her business, dress sensibly, and appear rational,” she once said, “and she will receive nothing but courtesy.”  Yet at the start of her career, lawyers and judges often exasperated her.  “You went into court with your mind full of your case.  You knew you had prepared it as carefully as would a man,” she explained.  “But the manner of the judge immediately became one of relaxed toleration.  You could almost hear him say, ‘Oh, a woman.  Well, we must bear with her as best we can.’”  Some lawyers were ostentatiously polite, calling her “my fair adversary” and “our feminine opponent,” but then discovered to their sorrow that they had underestimated her.  “I love to match my wits against men,” she told the journalist.  “It is great fun, and I just love to beat them.  You ought to see how foolish men feel when I win a case.”  In 1915, after a week-long trial, she won a verdict on behalf of a carpenter wrongfully excluded from his trade union—the first such judgment in twenty years.  Deeply impressed, several trade unions promptly retained her services. 

Her desire for a career, a journalist wrote, “did not prevent her from marrying.”  On April 5, 1917, she wed Isidor Kross, a surgeon two years her senior, the day before he sailed to Europe to serve in World War I.  Thereafter, she usually used “Anna M. Kross” as her professional name.  Kross considered herself fortunate to have married a professional who accepted her desire for a career.  “My husband says he is perfectly happy and does not feel neglected,” she said.  Presumably, the couple practiced family limitation, because they had only three children (one of whom died at age five).  Presumably, too they hired childcare: judging from a description of Isidor as “a prosperous physician,” they could afford it.  But a journalist went out of his way to report that Anna was “an excellent mother and guide to two young children” and that Isidor considered her “a mighty swell cook.”

While still a law student, Kross campaigned for woman suffrage.  After New York State gave women the vote in November 1917, she became head of the women's division of the speakers’ bureau of Tammany Hall, the nickname of the Democratic Party in New York City.  Alfred Smith, who serve four terms as governor of New York, adopted her as a protégé.  In 1919, she was appointed New York City’s first female Assistant Corporation Counsel.  Her caseload was before the city's Domestic Relations Court, which handled such matters as child support and paternity.  She thought her sex allowed her to make a distinctive contribution to the legal process.  “It is much easier for a woman to understand the psychology of another woman in distress,” she explained.  She also continued to pay due regard to the politicians who got her her job.  In one widely reported “women’s debate” in 1921, for example, she spoke on behalf of Tammany Hall’s candidate for mayor. 

In April 1920, John Patrick O’Brien, a graduate of Holy Cross and the Georgetown Law School and a loyal Tammany Hall member, became her boss as Corporation Counsel of New York City.  Journalists sometimes made fun of his “O’Brienisms,” but one revealed him to be a well-intentioned Catholic layman fumbling his way toward feminism.  “I'm a champion of women,” he declared.  “I’m a home man and a well-trained husband and have always been for anything women wanted.” 

Anna Moscowitz Kross (DRE)

In 1922, O’Brien was elected a judge of New York’s probate court on the Tammany ticket.  In that capacity, he chose lawyers to administer the estates of the deceased and named guardians for minors.  The appointment, in 1924, of a special guardian for the thirty under-aged descendants of J. Pierpont Morgan with interests under that financial titan’s will, was unusually important.  O’Brien chose Kross, who had returned to private practice in 1923.  The caption of the picture reproduced at right marveled that an impoverished immigrant child was now “responsible for the administration of the Morgan millions.”  At that time, Kross was already serving as general counsel to a body that helped the 70,000 members of New York City’s building trades file and pursue claims with the state worker’s compensation commission.  

A new phase in Kross’s career commenced in January 1934.  In 1933, the corrupt mayor of New York had been forced from office, and Tammany nominated O’Brien to compete in a special election to serve out the ousted mayor’s term.  After O’Brien won, Kross raised funds for his campaign for a full term with a “tea” for O’Brien’s wife attended by the spouses of various Democratic luminaries.  In November 1933, O’Brien lost to a progressive candidate, Fiorello La Guardia (who happened to have been Kross’s law school classmate), but on his last day as mayor, O’Brien named Kross to fill the unexpired term of a judge of the Magistrate’s Court.  Such judges occupied the lowest rung in the city’s judiciary, but collectively they processed a half million cases, mostly minor criminal offenses, annually.  Kross considered Magistrate’s Court “the greatest social force for the correcting of individual maladjustments.”  She was promptly assigned to a branch known as the Women’s Court.  

(Continued after the jump.) 

Kohtz on a Successful Challenge to an Indian Boarding School

Rong Kohtz, a historically minded attorney-at-law, has posted In re Lelah-Puc-Ka-Chee: A Case Study on the Americanization of Law in the Heartland, 1898-1908:

Lelah Puc-Ka-Chee (SHSI via Wiki)

From 1899 to 1908 in Iowa, the Meskwaki people and their local allies repeatedly defeated forcible removal of their children to a federal Indian boarding school in a series of legal actions during the zenith of hostile assimilation.  The case of Lelah-Puc-Ka-Chee was the first one of these cases.  The Meskwaki’s legal victory unsettles the prevailing historical account that casts Indigenous peoples as passive and reactionary to the U.S.’s assimilationist Indian policies and calls for re-examination of Indigenous Americans’ role in the evolution of American law.  By examining the power dynamics in the cases regarding Lelah-Puc-Ka-Chee, this essay investigates how far was the reach of the colonial administrative and judicial powers in the lives of Indigenous families and individuals, and what forces accelerated, slowed, or redirected the colonial powers in the domestic sphere at the local level.  In this exploration, the essay finds powerful Indigenous forces in the Americanization of law, and Indigenous Americans role as progenitors of a pluralistic American polity. 

--Dan Ernst

JAH 112:3

There is much of interest to legal historians in the latest issue of the Journal of American History (112:3):

Presidential Address: Historians' Voices in Times of Peril

David W Blight

“Disabled by Law”: Ableism and Self Advocacy in Eighteenth-Century British America
Laurel Daen

Plenary Powers: Chinese Immigration, Sovereignty Challenges, and the Making of Federal Immigration Power in the U.S. West
Julian Lim

The Long War on Welfare: Taxpayer Activists and the Politics of Backlash in Depression-Era America
Brooke Depenbusch

--Dan Ernst.  H/t GR 

Gonzales's "Breaking Down the Walls of Segregation"

David-James Gonzales, Brigham Young University, has published Breaking Down the Walls of Segregation: Mexican American Grassroots Politics and Civil Rights in Orange County, California (Oxford University Press):

On March 2, 1945, five Mexican American families and their Jewish American lawyer filed a class-action lawsuit against four school districts in Orange County, California, to end the segregation of ethnic Mexican children. In a shocking decision, the court ruled in favor of plaintiffs, setting a legal and historical precedent in Mendez, et al. v. Westminster School District of Orange County that shook the foundations of Jim Crow America and led to the end of de jure school segregation across the nation.

Breaking Down the Walls of Segregation tells the story of how ethnic Mexicans in a relatively unknown agricultural backwater built the unprecedented movement that led to this decision. Beginning in the 1880s, David-James Gonzales details the social and economic history of Orange County, explaining how citrus capitalists, seeking increased market share and profitability, established the walls of segregation to manage ethnic Mexican family labor. By the early 1930s, ethnic Mexicans were segregated into over fifty underserved colonias and barrios. Without training or support from national civil rights organizations, they mobilized against segregation and inequality beginning in the late 1920s. Ethnic Mexican grassroots organizations proliferated throughout the county, intent on engaging in civic affairs and ending anti-Mexican discrimination and segregation. This movement, comprised of immigrants, citizens, parents, children, emerging activists, and their non-Mexican allies, paved the way for the growth of LULAC and nationwide organizing. As an essential part of the "long civil rights movement," the ethnic Mexican struggle against segregation in Orange County illustrates how minoritized groups have historically pushed US social, economic, and political institutions to live up to the nation's founding ideals.

--Dan Ernst

Adams and Stanger-Ross on Exiling Japanese Canadians

Eric M. Adams and Jordan Stanger-Ross have published Challenging Exile: Japanese Canadians and the Wartime Constitution (UBC Press):

In September 1945, Canadian democracy faced a fundamental question of constitutional law: Could citizens be expelled on the basis of race? Canada proposed exiling Japanese Canadians to Japan, a country devastated by war. Thousands who had already experienced uprooting, internment, and dispossession were now at risk of banishment. Challenging Exile investigates the origins, administration, litigation, and aftermath of this attempt at gross injustice, and shares the stories of resilience of those who faced it.

How did Japanese Canadians navigate the challenges arrayed against them? Eric M. Adams and Jordan Stanger-Ross detail the circumstances and personalities behind the proposed exile. They follow the lives of families facing government orders that forced them from their homes, stripped their livelihoods and possessions, and deprived them of fundamental rights. And they analyze the constitutional framework of the court case in which lawyers and judges grappled with the meaning of citizenship, race, and rights at a time of change in Canadian law and politics.

Unfolding in a context of global conflict, sharpened borders, and racist suspicion, the story told in Challenging Exile has enduring relevance for our own troubled times.

This meticulous and moving account of a shameful episode in Canada’s past tells a necessary story not only for scholars and historians of law, politics, and human rights, but also for lawyers, judges, and readers of Canadian history.

The University of Alberta's notice of the book is here. 

--Dan Ernst 

Challenging Exile: Japanese Canadians and the Wartime Constitution

[We have the following announcement of a book launch to be held at the Library and Archives of Canada on Wednesday, November 12, from 7 - 8pm EST, with the doors opening at 6:30pm.  DRE]

Join us for the launch of Challenging Exile: Japanese Canadians and the Wartime Constitution  [University of Chicago Press] by Eric M. Adams and Jordan Stanger-Ross, presented by Library and Archives Canada.

In September 1945, Canadian democracy faced a fundamental question of constitutional law: could citizens be expelled on the basis of race? Canada proposed exiling Japanese Canadians to Japan, a country devastated by war. Thousands who had already experienced uprooting, internment and dispossession were now at risk of banishment. Challenging Exile investigates the origins, administration, litigation and aftermath of this attempt at gross injustice and shares the stories of resilience of those who faced it.

How did Japanese Canadians navigate the challenges arrayed against them? Eric M. Adams and Jordan Stanger-Ross detail the circumstances and personalities behind the proposed exile. They follow the lives of families facing government orders that forced them from their homes, stripped their livelihoods and possessions, and deprived them of fundamental rights. They also analyze the constitutional framework of the court case in which lawyers and judges grappled with the meaning of citizenship, race and rights at a time of change in Canadian law and politics.

Unfolding in a context of global conflict, sharpened borders and racist suspicion, the story told in Challenging Exile has enduring relevance for our own troubled times.

This meticulous and moving account of a shameful episode in Canada’s past tells a necessary story not only for scholars and historians of law, politics and human rights, but also for readers of Canadian history.

About the authors

Eric M. Adams is a professor in the Faculty of Law at the University of Alberta. He has written widely on constitutional law, legal history, employment law, human rights and legal education.

Jordan Stanger-Ross is a professor of history at the University of Victoria. He is the author of numerous works on the history of migration and race in North America.

[Register here.] 

Atencio on the First Generation of Latina Attorneys

Dolores S. Atencio has published The Illustrious Impact of Luminarias on the Law: The Legal Handicraft of the First Latina Article III Judges, State Supreme Court Justices, and Public Interest Litigators (Carolina Academic Press):

The first generation of Latina attorneys, Luminarias, earned their law degrees over the 100-year period of 1880–1980. Lawyer and author Dolores Atencio uncovered their identities and legal careers through the Luminarias Study, which was conducted from 2016 to 2022 at 167 law schools in the country accredited by the American Bar Association.

This book features the legal work of the first Latina federal Article III judges, state supreme court justices, and select public interest litigators. Their story begins in the early 1970s when the first Luminaria public interest social justice activistas began advancing novel litigation theories seeking to expand voting rights, equal educational opportunities and funding, and the reproductive and work rights of women. Included are cases tried or supervised by Luminaria litigators and leaders—Vilma Martinez, Norma Cantú, Antonia Hernandez, Irma Herrera, and Deborah Escobedo—during their tenures at the Mexican American Legal Defense and Education Fund, the Multicultural Education and Training Advocacy, Inc., Youth Law Center, Equal Rights Advocates, and the U.S. Department of Education, Office of Civil Rights.

Beginning in the 1980s when Luminarias began ascending to the bench, significant decisions issued by the first eight Luminaria judges on courts of last resort are discussed, including those that codify theories tested by the Luminaria litigators. The juridical careers of the first seventeen Luminaria Article III judges are covered, from both the district trial courts and circuit courts of appeals. Obstacles faced during their confirmation processes are highlighted as is data construed and created expressly for the book, including a comparison of the number of days from dates of referral to dates of confirmation.

For each Luminaria featured in the book, biographical summaries of their early lives, education, and professional trajectory are included. The intersectionality of the careers of these thirty-five remarkable Latina lawyers blends together their individual histories with the country's during times of turmoil, reconciliation, and a return to a litigious past.

–Dan Ernst.  TOC here.

Palau-McDonald on Farrington v. Tokushige

MJ Palau-McDonald, University of Hawai’i at Manoa--William S. Richardson School of Law, has posted Farrington v. Tokushige: Language & Power in Hawai’i:

In Farrington v. Tokushige (1927), the U.S. Supreme Court struck down on Fifth Amendment grounds a series of laws enacted by the Territory of Hawai'i to control and ultimately eradicate private Japanese language schools. Legal commentary on Tokushige is sparse. The case is often characterized as a straightforward application of Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923). Together, Tokushige, Pierce, and Meyer are often cast as the Court’s public education chapter of the Americanization period. However, viewing Tokushige as a simple extension of Meyer and Pierce alienates the case from its historical context of white elites’ attempts to maintain political and economic control in the Territory in the face of a growing population of Nisei (U.S.-born children of first-generation Japanese immigrants), who, unlike their parents, were U.S. citizens with the right to vote. In this way, the Territory’s anti-Japanese movement was distinct from concurrent Japanese exclusion initiatives in California and Washington, which revolved around attempts to prevent Japanese land ownership and economic ascension, though the fear of the “yellow peril” was the fulcrum around which these movements metastasized. Through an examination of the social and legal history behind Tokushige, this article reinserts the significant racial dynamics that undergirded the events, the cultural depictions, and the legal justifications for the Japanese school control legislation that was lost in the Court’s sterilized decision. It also resituates Tokushige within the context of U.S. colonization and the forces that justified control over Hawai’i’s politics, land, and culture. The case’s unique history is inextricably intertwined with the establishment and maintenance of U.S. hegemony in the Pacific. Recontextualized, Tokushige implicates core questions of power that are increasingly relevant today, including who has access to political and economic power and who creates the conditions for access to that power.

--Dan Ernst 

HLS Symposium: Brandeis on "the Jewish Problem"

Louis D. Brandeis (NYPL)

[We have the following announcement.  DRE] 

“The Jewish Problem, Then and Now: Rethinking Louis Brandeis’s Liberalism”

A Symposium sponsored by the Julis-Rabinowitz Program on Jewish and Israeli Law at the Harvard Law School.  September 16, 4:00 pm - 8:00 pm

2025 marks the 110th anniversary of Louis Brandeis’s famous essay, “The Jewish Problem – How to Solve It.” Taking as his point of departure the persistence of antisemitism in the twentieth-century world, Brandeis laid out a diagnosis of liberalism’s challenges and a positive vision for its future. His essay also marked a major statement on liberal Zionism and the rationale for American Jewish commitment to reconciling Jewish nationalism and American democracy. A century later, we revisit this text and the broader Brandeisian legacy to think about the contemporary questions of liberalism and Zionism, law and economics, and citizenship and group rights in American law. 

Symposium Chairs: Noah Feldman, Felix Frankfurter Professor of Law, Harvard Law School and James Loeffler, Felix Posen Professor of Modern Jewish History, Johns Hopkins University.  With William Forbath (Univ. of Texas, Austin), Amalia Kessler (Stanford), Linda Kinstler (Harvard), Shaul Magid (Harvard), Eric Nelson (Harvard), Simon Rabinovitch (Northeastern), and Laura Weinrib (Harvard)

4pm

Welcome from James Loeffler and Noah Feldman

4:15 – 5:30pm

William Forbath “Brandeis and his Jewish Socialist Critics & Collaborators on Zionism & Industrial Democracy” 

Amalia Kessler “Arbitration and the Jewish Question, 1900-1950” 

Simon Rabinovitch Moderator 

5:30-6:30pm

Shaul Magid “Jewish Nationality, Nationhood, and Diaspora Nationalism: Reading Mordecai Kaplan and Daniel Boyarin through Louis Brandeis”

Laura Weinrib “Free Speech, Group Rights, and Jewish Identity”

Linda Kinstler moderator

6:45-7:45pm

Keynote: “Brandeis’s Jewish Question(s): Global Liberalism Reconsidered”
James Loeffler
Response: Noah Feldman
Moderator: Eric Nelson

ASLH's Virtual New Books Series

[Here's another reason to join the American Society for Legal History: Members can virtually participate in this series on great new books in the field.  DRE]

Making Connections: New Works in Legal History Series, 2025-2026 

All sessions will be on Zoom Wednesdays from 6:00-7:00 pm (Central Time).  We will send an email two weeks in advance of each event.  You must RSVP to receive the zoom link.  RSVP messages will be sent to membership approximately 1 week before the event.  ASLH Members can watch videos of previous events on our members page
 
September 17, 2025 – Esther Liberman Cuenca, The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press, 2025) with interlocutor Sara M. Butler
 
October 22, 2025 – Sonia Gomez, Picture Bride, War Bride: The Role of Marriage in Shaping Japanese America (NYU Press, 2024) & Kathryn Schumaker, Tangled Fortunes: The Hidden History of Interracial Marriage in the Segregated South (Basic Books, 2025)
 
December 10, 2025 – Marla A. Ramírez, Banished Citizens: A History of the Mexican American Women Who Endured Repatriation (Harvard University Press, 2025) with interlocutor Kevin R. Johnson
 
January 21, 2026 – Omar Youssef Cheta, How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press, 2025) with interlocutor Nurfadzilah Yahaya
 
February 25, 2026 – Tadashi Ishikawa, Geographies of Gender: Family and Law in Imperial Japan and Colonial Taiwan (Cambridge University Press, 2025) with interlocutor Jisoo M. Kim
 
March 25, 2026 – Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025) with interlocutor Margot Canaday
 
April 15, 2026 – Kevin Arlyck, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press, 2025) with interlocutor Alison LaCroix

JAH 112:1

 [The June 2025 issue of the Journal of American History is chock full of legal history.  We reprodcue its “In This Issue.”  DRE.]

M. Scott Heerman examines the contours of race, citizenship, and legal personhood abroad during the 1850s. He examines two freedom suits filed by John Lytle and Ben Newton, illegally enslaved African Americans in Cuba, and unpacks State Department policy covering rights to citizenship in those cases and others. His article shows that consular agents on the ground in Havana and high-ranking State Department officials in Washington, D.C., maintained a two-tiered system of protection that distinguished between granting legal protections based on birthright and conferring full rights afforded to citizens.

What is the place of law in the history of anti-immigrant violence in the United States? Seeking an answer, Hardeep Dhillon historicizes several attacks on immigrants from India between 1907 and 1910. She argues that the lack of protection or justice for immigrant communities in the face of mob violence is not a simple history of law gone wrong or even a history of discriminatory law, but a history of anti-immigrant fervor and impunity structured through the law. Her article reveals how laws on the books and laws in practice shaped both the violence immigrants experienced and possible forms of redress.

Despite the wealth of scholarship on mortgage discrimination, comparatively little is known about how redlining affected rental housing. During World War II, the Federal Housing Administration (FHA) began underwriting new apartments for defense workers and war veterans. Brent Cebul and Michael R. Glass examine how developers such as Fred Trump and William Levitt abused FHA insurance programs by inflating their costs and reaping excess profits in a tactic known as “mortgaging out.” Drawing upon their original database of FHA-insured apartments, Cebul and Glass illuminate how developers not only deepened racial segregation but also transformed the landscape of rental housing across metropolitan America.

As historians debate the causes of the decline of American democracy—the backlash against civil rights, income inequality, changing media—the Iran-Contra scandal of the Ronald Reagan–George H. W. Bush years, over trading arms with Iran and funding rebels in Central America, never figures in this discussion. Iran-Contra has receded from history, regarded as a minor speed bump in the late Cold War. Reinterpreting the fiasco as an accelerant in the decay of U.S. democracy, Alan McPherson argues that the 1987 televised congressional hearings highlighted several major disparities in how Democrats and Republicans understood norms: Democrats warned of a broad assault on democracy, while Republicans dismissed the disturbing events as mere means to foreign policy ends. Unlike during the Watergate scandal, no one paid a price for Iran-Contra, and the behaviors worsened.

Shugerman on Chinese Immigrants and Birthright Citizenship

Jed H. Shugerman, Boston University School of Law, has posted An Originalist Case for Birthright Citizenship of Unlawful Immigrants' Children: Early Restrictions on Chinese Immigrants as Categorical Context:

Some opponents of birthright citizenship for the children of "unlawful immigrants" make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to "lawful immigrants," because the category of "unlawful immigrant" or "illegal immigrant" did not exist in the 1860s, when the clause was written and ratified. This assertion was the main substantive argument about birthright citizenship offered by the Solicitor General in Trump v. CASA, and it is historically inaccurate. 

To the contrary, the concept of "unlawful immigrants" existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating any doubt that citizenship would extend to their children. This paper summarizes recent historical scholarship documenting a political movement against Chinese immigrants in western states and territories-especially California-leading to state restrictions against Chinese immigrants in the 1850s and 1860s, followed by early federal restrictions. These immigration restrictions were mostly a system of taxes, fees, and fines against immigrants, plus criminal penalties on U.S. citizens who engaged in illegal transit. These restrictions established a new legal regime with similar concepts of "unlawful" immigrants. They also demonstrated the rise of a powerful political movement that sought more direct exclusion, so that the nation had notice that the modern category of unlawful or illegal immigrants was more than just foreseeable; it was politically and conceptually on the table in the 1860s. In 1866, the congressional debates over the citizenship clause explicitly confirmed that the text would grant citizenship to Chinese immigrants, without raising a concern about this category of immigrants.  

--Dan Ernst 

Cronan on the Patroon System and NY Landlord-Tenant Law

Liam Cronan, who currently serves as a law clerk in the U.S. District Court for the District of Massachusetts, has posted Rent, Riots, and Rensselaer: The Patroon System of New Netherland and Its Lasting Influence on the History of Landlord-Tenant Law:

For more than two-and-a-half centuries, a Dutch aristocracy thrived in upstate New York. Known as “patroons,” these powerful landlords controlled vast tracts of land, claimed by the Netherlands in the 1620s, and extracted rents from those lands well into the nineteenth century. Among the first and most influential patroons was Kiliaen van Rensselaer, whose interactions with colonial agents left behind a rich and extensive body of legal records. As these sources reveal, the patroon system’s unique constitution, derived from Dutch civil law, granted the patroon a seemingly feudal right with no analog in Anglo-American legal history: the ability to sell part of his land yet still require rent payments from his former “tenants.” Despite initial efforts to curtail it, this system persisted long after New York transitioned from a colony to a state, perplexing courts and lawyers alike for generations. After a violent uprising known as the Anti-Rent Movement failed to end the patroon’s claims to perpetual rent, New York courts faced a slew of cases challenging the patroon system’s legality. These cases exposed, and attempted to harmonize, the inherent conflict between English common law and Dutch civil law, which continued to shape New York law long after Dutch colonial rule ended, setting lasting precedents for property rights, landlord-tenant law, and the ability to bind property with perpetual conditions. But despite this significance, the patroon system has long been undervalued by legal historians, with most recent scholarship mentioning it only in passing. In resurrecting this neglected area of property law, this article seeks to impart a historically informed understanding of the patroon system and its enduring impact on landlord-tenant law. It will begin by tracing the origins of the patroonship as a tool to aid Dutch colonization. Drawing on careful analysis and translation of the records Van Rensselaer and his agents left behind, it will then demonstrate how the patroonship formed an interlocking system of property rights that provided patroons like Van Rensselaer with not only the right to collect rent but also to control his tenants’ labor, direct local commerce, broker debts, and even establish his own laws and courts. Finally, it will examine a series of key nineteenth-century cases and treatises, illustrating the nuanced legacy of the patroon system and its complex interactions with Dutch and English legal traditions. By connecting the patroon system to the broader evolution of American property law, from contemporary landlord-tenant statutes to cases on COVID-19 mask requirements, this article will reveal its lasting influence on property law and its rightful place in American legal history.

--Dan Ernst

Weekend Roundup

• On February 21, 2025, the Heyman Center for the Humanities at Columbia University will convene a day-long event titled "The Law in Times of Emergency and Transition: Legal Perspectives on 40 Years of Democracy in Brazil." Registration is open to the public.  
  

• In Time Magazine's Made By History series: Karin Wulf on John Marshall's dinner with John Adams, Rachel Rosenbloom notes that Birthright Citizenship Has Been Challenged Before, and Bruce W. Dearstyne discusses TR's DOGE.
  

• Reviews of Jonathan Gienapp's Against Constitutional Originalism in the online journal of the Liberty Fundby John O. McGinnis and Mike Rappaport and Aaron N. Coleman.
  

• Keith Whittington discusses why free speech can't be taken for granted on the Inside Yale Law School podcast.

•  From ProMarket: Elizabeth Popp Berman (University of Michigan) on "How Industrial Policy Gave Us the Sherman Act." (H/t LPE Blog)
  

• A reminder: Amanda Tyler will speak on Mitsuye Endo and Japanese Incarceration on Zoom for the Supreme Court Historical Society on January 23 at 12 pm EST.
  

• Chelsea Gibson interviews Kenyon Zimmer, a historian of transnational radicalism, on his “comprehensive digital archive of Red Scare deportees” (SHGAPE Blog).
  

• Online and at the Signet Library in Edinburgh, Chloe Kennedy will discuss her book Inducing Intimacy: Deception, Consent and the Law on January 30, 6 - 8pm GMT.  More.
  

• Paul Finkleman discussed the complicated history of “John McLean: Southern Ohio’s Homegrown Anti-Slavery Justice" (UCNews).
  

• The Lillian Goldman Law Library at the Yale Law School, has a new exhibit.  Running through May 25, 2025, Flowers at Lambach "follows the history of a single manuscript volume: a collection of texts relating to canon law, produced by the scriptorium at the Benedictine Abbey of Lambach in Austria in the late 15th century, and entering into the collections of the Yale Law Library in 1949.
  

• An excerpt from Michelle Adams's The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North (Literary Hub) and Michigan Law's notice of the book.
  

• Just out from Oxford University Press: Redefining Comparative Constitutional Law: Essays for Mark Tushnet, edited by Madhav Khosla and Vicki C. Jackson.

• ICYMI: Eric Muller on what federal workers in a second Trump administration can learn from the lawyers of the War Relocation Authority (Chicago Tribune).  Therese O'Neill discusses the famous Mrs. Packard on the This Day In Esoteric Political History podcast. Egbert Benson: New York’s first Attorney General (New York Almanack). Alicia Gutierrez-Romine on the legal history of abortion bans (Perspectives in American History).  
  

• Update: Kenneth W. Mack and other historians (including Sarah Igo, Donald Critchlow, and Sean Wilentz) on Biden's presidential legacy (Politico).  An obituary of Shirah Neiman (1943-2025), who, some years after Eunice Hunton Carter left the office of the U.S. Attorney for the Southern District of New York, joined its by then all-male Criminal Division and became its expert on criminal tax law (NYT).  Holly Brewer on becoming a Friend of the Court (Perspectives in History).
  

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

Weekend Roundup

• Congratulations to Professor William Chester Jordan upon his receipt of the Barry Prize for Distinguished Intellectual Achievement awarded by the American Academy of Sciences and Letters.  Princeton University's notice is here.  
  

• From In Custodia Legis: "A Short History of the First Native American Women Lawyers and Judges in the United States."

• Paul Lombardo, Georgia State University  College of Law, will lecture on “Carrie Buck on Trial: A Centennial Retrospective” at Washington and Lee University on Monday, Nov. 18 at 5:30 p.m. in Hillel 101.
  

• Eric Muller, a leading legal historian of the Japanese-American "internment," took students in his “Lawyers in Justice and Lawyers’ Injustice” seminar at the University of North Carolina School of Law to Heart Mountain, Wyoming, over fall break.  "Students spent their mornings analyzing government documents and court cases, while afternoons were dedicated to exploring the museum’s exhibits and original structures. In the restored barracks and historic root cellar, the reality of what government lawyers helped implement became tangible."  More.
  

• Johnny Rex Buckles, University of Houston Law Center, reviews Lawrence A. Zelenak and Ajay K. Mehrotra's edition of Stanley Surrey's memoirs in the Florida Tax Review.
  

• Robert L. Tsai revies Aziz Rana's Constitutional Bind in The New Rambler.

• 
  An update on digitization at the National Archives. Among the newly digitized records are those related to the killing of Hattie DeBardelaben, rescued from obscurity by the Civil Rights Cold Case Records Review Board. 
  

• Jake Kobrick, Associate Historian at the Federal Judicial Center, has posted another Spotlight on Judicial History: The Codification of Federal Statutes on the Judiciary.
  

• The recording of that National Constitution Center session on Native Americans and the Supreme Court, with by Keith Richotte Jr., and Matthew L.M. Fletcher, is here.
  

• ICYMI:  David E. Kyvig on Clarence Thomas's Constitution (HNN).
  

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

Blackhawk on American Indians and Japanese Internment

Maggie Blackhawk, New York University School of Law, has posted The Crisis in Colonial Administration: American Indians and Japanese Internment, which is forthcoming in the American Historical Review:

On March 24, 1943, Acting Secretary of the Department of the Interior, Abraham “Abe” Fortas, and Director of the War Relocation Authority (WRA), Dillon Myer, agreed to repurpose a former Indian boarding school into the primary prison for camps that interned over a hundred thousand individuals “of Japanese ancestry” during World War II.  Built in 1909 on the homelands of the Navajo Nation and only recently closed to students, the Leupp Training School offered the WRA a foundation upon which to construct a prison for the “aggravated troublemakers” in the ten internment camps.  These “aggravated troublemakers” were largely dissidents—individuals who challenged their detention and forced loyalty oaths through collective action like strikes and other uprisings; these individuals were imprisoned at Leupp without charges or trial, and some were transported to the prison in “coffin-like” four-foot-by-six-foot wooden boxes with a single air hole that only narrowly prevented suffocation during the thirteen-hour trip.

Located 30 miles away from its nearest town of Winslow, Arizona (population ca. 4,500), the Leupp Isolation Center imprisoned approximately 80 of the circa 120,000 Japanese and Japanese Americans detained by the United States—seemingly yet another drop of injustice in a wave of “morally repugnant” policy.  But the Leupp Isolation Center provides a particularly paradigmatic example of the central role of American colonialism in facilitating Japanese internment.  Few scholars to date have drawn connections between American colonialism, Native nations, and Japanese internment.  Even fewer scholars have unearthed the direct, enduring, and broad relationship between the federal government’s efforts to colonize Native people and its efforts to intern people of Japanese ancestry.  Initially, all ten Japanese relocation centers were sited to be built on Indian reservations, and Commissioner of Indian Affairs, John Collier, campaigned to head the project he described as “colonization of the Japanese,” including the administration of all camps he termed “colonies.”  Disputes over how much self-determination to foster at the camps disrupted those initial plans, however, and the agency created to oversee Japanese internment, the War Relocation Authority, cobbled together seasoned colonial administrators from the Indian Service and another, more top-down, colonial administration agency, the Soil Conservation Service.    

This Essay explores how the administrative agencies and actors who built and maintained American colonial projects across Indian Country turned these same tools toward the detention, internment, and incarceration of individuals with Japanese ancestry.  This history is necessarily one of administration—it finds continuities between federal administrative institutions, their officials, and the legal justifications they offered (or did not) in accomplishing their aims.  Disputes between administrative officials over how best to colonize Indian Country spilled over into disputes over how best to intern Japanese Americans and Japanese nationals.  These disputes, in turn, then impacted federal policy for Indian Country as these officials returned to the Indian Service following closure of the internment camps.  This history is a history of American colonialism writ large. It reveals the ways that the American colonial project was not tethered to particular populations (Indians) or contexts (Indian Country) but was instead an effort to build infrastructure—legal, constitutional, technological, bureaucratic—to govern a range of populations.

--Dan Ernst

Wieboldt on Boston's Red Mass

Dennis J. Wieboldt III has posted Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944, which appeared in U.S. Catholic Historian:

Thomas Aquinas (NYPL)

Amid the Second World War, the Boston College Law School and the Archdiocese of Boston co-sponsored the first Red Mass in New England. Though this liturgy had been celebrated for centuries to invoke divine guidance for legal administrators, the Red Mass tradition emerged in Boston during a particular American Catholic intellectual movement. This movement encouraged Catholic and non-Catholic legal practitioners to predicate their understandings of the American legal tradition on the Natural Law philosophy of Thomas Aquinas and, purportedly, the Founding Fathers. By employing the movement's intellectual resources during Red Mass sermons, Boston's Catholic leaders believed they could demonstrate the philosophical Americanness of U.S. Catholicism. Chiefly responsible for the Red Mass tradition's emergence and sustained influence in Boston was Father William J. Kenealy, S.J., Boston College Law School's dean (1939-1956). The history of the first four Red Masses in Boston suggests that the experience of wartime significantly informed Catholic leaders' postwar conviction that appealing to the Natural Law could offer an effective medium for American-Catholic reconciliation.

As Edward Purcell demonstrated in the Crisis of Democratic Theory and I discovered when I wrote a history of Georgetown Law that covered the same period, how Catholics invoked Natural Law to argue that they belonged in the United States during the years when the nation's exceptionalism was a fighting faith is fascinating.  The story Wieboldt recounts is news to me, and it might provide clues to the thinking of at least some of the Catholics justices on today's Supreme Court.

--Dan Ernst

Memon on Caste in British International Legal Thought

Ahmed Memon, Cardiff School of Law and Politics, Cardiff University, has published, open access, “English in taste, Indian in blood”: caste hegemony in the making of British international legal thought, in the London Review of International Law:

In this article, I argue that caste was a central factor in the development of British international legal thought in the subcontinent. Specifically, I contend that British international legal thought entrenched caste hegemony into the broader racial civilisation hierarchy of international law in the nineteenth century.

Dan Ernst

Heath on Chinese Boycotts

J. Benton Heath, Temple University Beasley School of Law, has posted Economic Sanctions as Legal Ordering:

This Article recovers a critical episode in the history of economic sanctions and considers its implications for world order today. Beginning in 1905, Chinese citizens launched a series of protests targeting American, British, and Japanese goods. These boycotts caused economic damage, disrupted international relations, and at times won significant political victories. At the same time, they captured the imaginations of peace advocates, lawyers, and scholars, who saw in the boycotts either a fundamental threat to legal ordering, a promising avenue for enforcing interstate peace, or, most radically, an engine for new kinds of political organization outside the typical forms of state and empire.

This Article argues that the debates over the early twentieth-century Chinese boycotts invite us to rethink the relationship between economic sanctions and legal ordering. Through historical and theoretical work, the Article demonstrates that boycotts were understood at the time as a form of insurgent legal ordering, which threatened the unity of the state-based legal system. Drawing on the history of the boycotts, this Article develops a theory of insurgent legal ordering. And it shows how lawyers of the period developed a response to this perceived threat that required states to centralize and control the means of economic warfare. The result not only sheds light on the history of economic sanctions, but also suggests a broader critique of the role of economic sanctions in the international legal order today.

--Dan Ernst

Friedman on Chinese Law and the Confucius Myth

Daniel Friedman, Villanova University Charles Widger School of Law, has posted “Confucius” and America’s Dangerous Myths about Chinese Law, which is forthcoming in the University of Pennsylvania Journal of International Law:

Confucius (NYPL)

American legal scholars can’t stop talking about Confucius: there were over 100 law review articles in 2022 alone that reference Confucian ideas, and nearly 1,500 during the last five years. Almost all of them are wrong about what Confucius has meant for Chinese legal culture. In the face of five decades of contrary historical scholarship, these law review articles argue or imply that Chinese law started to become “Confucian” about 2,000 years ago and has never really changed since. That continuity (or stagnation), these scholars claim, is one of the keys to understanding contemporary Chinese law. As this article will show, the reality is very different.

From the 16th century to the present day, scholars, politicians, and others with an axe to grind have constructed a series of legally influential “Confuciuses” to score points in the debates of their day. Unfortunately, American legal scholars are stuck repeating these self- interested stories with little idea of where they came from or what they mean. American authors largely view this “Confucian” legal legacy as something suspicious, or at least exotic, and their descriptions exacerbate the Sino-American cultural and political gulf. Chinese authors, on the other hand, often view it as a matter of national pride, a demonstration of the power and centrality of a Chinese civilization destined to sway modern Asia.

In this article, I argue that these erroneous views of the “Confucian” nature of Chinese legal culture have profound implications, impairing our ability to clearly understand contemporary Chinese law and contributing to a global and domestic atmosphere of suspicion and hatred. Only by untangling where our ideas about “Confucian law” come from and what they really imply can we hope to avoid exacerbating Sino-American hostility on the one hand and nationalist Chinese expansionism (of the kind felt most sharply in Tibet, Hong Kong, Taiwan, and Xinjiang) on the other. 

--Dan Ernst