A Retrospective on the Work of Hendrik Hartog

Law and Social Inquiry 4:2 (May 2019), includes a retrospective symposium on the work of Hendrik Hartog, Princeton University.  Risa Goluboff, University of Virginia Law School, has posted her introduction to SSRN, and so we include a link to it and her abstract below.

What Makes Hartog Hartog: Introduction to a Symposium on the Work of Dirk Hartog
Risa L. Goluboff

The essays in this symposium on the work of Dirk Hartog encompass meditations on legal positivism and the histories of slavery, civil rights, and women’s rights as well as con- temporary analyses of spousal abuse and the dependency of adult children. That wide range of subjects, approaches, and concerns might be puzzling were it not for the wide substantive, methodological, and theoretical range in Hartog’s own oeuvre. Hartog’s work has been so generative for other scholars because of his simultaneous engagement with history and law, with fact and theory, with the whole sweep of the nineteenth century and the most minute detail of a person’s life. In describing in this introduction what makes Hartog Hartog, I emphasize the unique blend of professional commitments and personal sensibilities he brings to his work: the sensitivity with which he approaches history; the humanity with which he treats his historical subjects; the dexterity with which he analyzes the law; and the sophistication with which his human and legal stories yield up jurisprudential insights. I also, respectfully, disagree with Hartog himself on the essence of his work. Where he laments that he exists in a “muddle in the middle”—writing histories of a problematic “inbetweenness”—I see him as making the messy lived reality of legal history cognizable to modern reader. His work reveals the simultaneity of multiple and overlapping legal regimes as they shaped and were shaped by the human needs of real people.

Pigs and Positivism: Between Jurisprudence and Politics
Roy Kreitner

Rights-consciousness as an Object of Historical Inquiry: Revisiting the Constitution of Aspiration
Ely Aaronson, Arianne Renan Barzilay

Marital Consciousness and the Criminalization of Spousal Abuse
Galia Schneebaum
  
Parents and Adult Children: The Elusive Boundaries of the Legal Family
Shelly Kreiczer-Levy

Slavery, Freedom and Contract: Blurred Lines and Historical Resistance
Eli Cook, Anat Rosenberg

Response: A Muddle in the Middle
Hendrik Hartog

--Dan Ernst

Gaius and Jane Bolin

[My exam in American Legal History also includes a biographical essay.  Usually (as here and here), it treats only a single person.  I intended to do the same this year when, prompted by an event sponsored by the Black Law Students’ Association at the Yale Law School, I decided to see whether Jane Bolin would be a good subject.  Jacqueline A. McLeod’s Daughter of the Empire State: The Life of Judge Jane Bolin (University of Illinois Press) certainly showed that she would be, but it also gave an intriguing view of her father Gaius Bolin, so I opted for a joint essay.  Daughter of the Empire State is my principal source for this essay, augmented by Kenneth Mack’s discussion of Jane Bolin in Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press), and my own searches on newspapers.com.  In addition to the linked images, be sure to check out the picture of daughter and father during Jane Bolin’s return to Poughkeepsie in 1944 that Professor McLeod reproduces in her book.  Dan Ernst]

Weekend Roundup

• If you'd like to see how legal historians' scholarship figured in the recently decided Emoluments Clause decision Blumenthal v. Trump, Judge Sullivan's decision is here.  I was pleased to note the Judge's particular reliance on the scholarship of my Georgetown Law colleague John Mikhail.   Marcia Coyle discusses the historians' brief in the case in the National Law Journal.  H/t DV.  --DRE 

• The University of Wisconsin Law School introduces this year’s Hurst Fellows, with brief bios and descriptions of their projects.  More.

• We have received a call for papers from the Theory and History of Law Center of the University of Lisbon on the 250th anniversary of what our computer somewhat dubiously translates from the Portuguese as “A Good Reason Law of August 18, 1769.”  Deadline is May 31, 2019. 

• Marlene Daut, University of Virginia, on the constitutional history of Haiti.

•  The Historical Society of the New York Courts has posted an excerpt from Paul McGrath's "People v. Croswell: Alexander Hamilton and the Transformation of the Common Law of Libel," which originally appeared in Judicial Notice, the Society's journal, available here.

• Available online (and ungated) from the American Journal of Legal History: Re-tying the knot? Remarriage and divorce by consent in mid-Victorian England by Penelope Russell, and Justice under Administration: An Overview of Judiciary and Courts in Spain, 1834–1870, by Julia Solla. 

• Our friends at the Federal Judicial Center recently tweeted out the link to its report, Federal Judiciary Appropriations, 1792-2010, written by Daniel S. Holt in January 2012.

• On HNN: Anders Walker, Racism’s Longue Durée: Why the Citizens’ Councils Matter Now, a review of Stephanie Rolph's Resisting Equality: The Citizens’ Council, 1954-1989.

• ICYMI: Preserving the sites of Nat Turner's Rebellion, in WaPo. South Carolina's "blue laws" in the Greenville News.  Annette Gordon-Reed makes sure legal history is part of HLS’s pre-orientation. How George Carlin’s ‘Seven Words’ Changed Legal History, on Biography. 

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

Two articles on Jewish law in French history

Back in 2017, Géraldine Gudefin (American University) published two articles on Jewish law in French history. We missed these earlier. Here are some details:

(1) "Creating Legal Difference: The Impossible Divorce of Russian Jews in Early Twentieth-Century France," Nashim: A Journal of Jewish Women's Studies & Gender Issues 31 (2017), 11-36

Abstract: Much of the scholarship on Jewish divorce assumes that civil marital laws are beneficial to Jews. This article complicates that assumption by focusing on a rarely acknowledged aspect of Jewish immigration in France. As France moved towards a stricter understanding of the separation of church and state, civil courts rejected the possibility of applying religious divorce laws to foreigners. Combined with the French practice of applying foreign law in cases involving immigrants, this shift resulted in Russian Jews being denied the right to civil divorce from 1905 to the 1920s. The confessional nature of Russian divorce thus continued to shape the lives of Russian Jews even after their immigration to France. The case of Russian Jewish divorce casts light on the shifting and contradictory understand-ings of the separation of church and state in France during the early years of the twentieth century.

(2) "Reforming Jewish Divorce: French Rabbis and Civil Divorce at the Turn of the Twentieth century (1884-1907" in Martine Gross, Sophie Nizard, and Yann Scioldo-Zurcher, eds., Gender, Families and Transmission in the Contemporary Jewish Context (2017)

Excerpt from introduction: "In the months and years following the passage of the law of 1884 [restoring civil divorce in France], rabbis in France became increasingly aware of the plight of Jewish women who were denied a religious divorce. Over the next two decades, French rabbis designed myriad proposals in an effort to reform Jewish marital laws and  prevent the problem of
agunot; these rabbinical proposals became widely  publicized in the French Jewish press. This article examines the manifold suggestions for reforming Jewish divorce between 1884 and 1907, focusing particularly on the conflicting pressures faced by French rabbis. On the one hand, Jewish communal leaders were extremely influenced by French debates about civil divorce, sharing similar ideas with reformers of civil divorce about the adaptive nature of the law and the need for more  balanced gender relations. On the other hand, owing to the transnational nature of Jewish law and life, the discussion about religious divorce transcended France's national borders, thus complicating attempts at reform."

Further information is available here.

Sepper and Dinner on Sex in Public

Elizabeth Sepper, Washington University in Saint Louis School of Law, and Deborah Dinner, Emory University School of Law, have posted Sex in Public, which is to appear in the Yale Law Journal:

This Article recounts the first history of sex in public accommodations law—a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only sexual minorities but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed "men-only" signs. Women held secondary-status in civic organizations, like Rotary and Jaycees, and were excluded altogether from many professional bodies, like press clubs. Sports—from the Little League to the golf club—kept girls and women from achieving athletic excellence. Insurance companies and financial institutions subsumed married women's identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for "full and equal enjoyment" by both sexes. At the time "sex" was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to the public sphere. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples' wedding cakes to transgender people's restroom access.

Weekend Roundup

• From the Washington Post's "Made by History" section: Robert L. Tsai (American University) on how activists forced a cultural and institutional reconsideration of the now infamous Korematsu case. Also Mary Ziegler (Florida State University) on William Barr's career and the status of the long-running war over abortion.

• From In Custodia Legis, a post on the history of baseball card litigation. 

• On May 9, 2019, the National Constitution Center will open a new permanent exhibit, Civil War and Reconstruction: The Battle for Freedom and Equality.  More.

•  The latest "Education Update" from National Archives  is a teaching exercise around the indictment of Ann Greenleaf under the Sedition Act of 1798.

• Just out on line in Law and History Review is Giuliana Perrone’s “Back into the Days of Slavery”: Freedom, Citizenship, and the Black Family in the Reconstruction-Era Courtroom, and, in the American Journal of Legal History, is Britt P Tevis’s “The People’s Judge”: Jacob Panken, yiddish socialism, and American law. 

• Also, the Cambridge University Press has announced complimentary access until March 1, 2019 to over fifty articles in its various journals.

• On Wednesday, February 6, the National History Center hosts How Congress Reforms Itself: Historical Perspectives on Rules Changes, Cannon House Office Building, Room 122, 10:00am- 11:00am.

• ICYMI: "The Museum of Baltimore Legal History has reached the halfway point in its fundraising efforts," as per the Maryland Daily Record. Annette Gordon-Reed and Peter S. Onuf at Grand Valley State University.  And ASLH Past President Bruce Mann: The Marie Claire Interview.

• Update: Congratulations to the Senate Office of Legislative Counsel, which, with its counterpart in the House, is celebrating the centennial of its founding in February 1919 as the Legislative Drafting Service!  Senator Grassley introduced a brief history of the office into the Congressional Record.

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

Witte on Calvin on Marriage

John Witte, Emory University School of Law, has posted The Marital Covenant in John Calvin’s Geneva, which appears in Political Theology 19 (2018): 282-299:

John Calvin (LC)

This Article analyzes John Calvin’s reformation of Western family law in sixteenth century-Geneva. Calvin depicted marriage as a sacred and presumptively enduring union, but also a conditional and breakable covenant with distinct and discernible goods and goals that couples and communities alike had to support. This covenantal framework gave Calvin new rationales for old rules concerning marital and non-marital sex and cohabitation, courtship and weddings, procreation, nurture, and education of children, and the punishment of adultery, polygamy, and “unnatural” sex within and beyond the marital bed. But Calvin also set out new teachings on the proper communal formation and maintenance of the marital covenant, and introduced into Genevan law the rights of husbands and wives alike to divorce and remarry in cases of hard fault.

Weekend Roundup

• The Library of Congress recently announced the launch of the Foreign Law Web Archive, with a collection period commencing June 20, 2016.

• Lots out this week for the the 100th anniversary of the end of World War I, including this and this on South Asian soldiers' experiences in the trenches, Anya Jabour's Nursing Clio article on an American Red Cross nurse named Mary Curry, and our blogger Mitra Sharafi's piece on the longer history of poison as a weapon. From a few years ago, here is an NEH interview with Chad L. Williams on African-American soldiers in WWI. 

• Mark Leeming, University of Sydney Law School, has posted his review of Jonathan Rose’s Maintenance in Medieval England, which appears in the Cambridge Law Journal 77 (2018): 402-05.  The review highlights the “free access to plea rolls provided by the Anglo-American Legal Tradition Archive,” about which those who attended the ASLH's Annual Luncheon from its creator Robert C. Palmer, Houston Law, in his remarks upon being named a Honorary Fellow.

• Congratulations to Deborah Hamer (William & Mary History), for winning an honorable mention for Best Article from the Society for the Study of Early Modern Women. The article: “Marriage and the Construction of Colonial Order: Jurisdiction, Gender and Class in Seventeenth-century Dutch Batavia,” Gender & History 29, no. 3 (2017): 622-640.

• Michael A. Livingston (Rutgers Law School) has posted The Other F-Word: Fascism, The “Rule of Law,” and the Trump Era, a review essay on several books “that have suggested parallels between 1930s-style fascism and present day politics, especially that of the Trump Administration,” including some of our summer reading (Timothy Snyder’s Road to Unfreedom and Steven Levitsky and Daniel Ziblatt’s How Democracies Die).  His verdict: “these parallels are generally unconvincing.”

• From the Washington Post's "Made by History" section: Daniel Rodgers (Princeton) on "What we get wrong about 'a city on a hill'"; Martha Jones (Johns Hopkins) on "when black women journalists fight back"; and much more.

• In the New York Times: an op-ed by Gregory Downs (UC Davis) and Kate Masur (Northwestern) on "How To Remember Reconstruction" (and why Congress should pass the Reconstruction Era National Historical Park Act).

• Update: John Fabian Witt on "Lincoln's Code" via YaleNews.

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

Advance Articles from AJLH

Have you signed up for Advance Alerts for the American Journal of Legal History?  Articles appearing on-line since November 8 are:

Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961, by Coel Kirkby

Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship, by Lloyd Bonfield

Italian judges and judicial practice in Libya: a legal experiment in multinormativity, by Alessia Maria Di Stefano
The Jury Speaks: Jury Riders in the Nineteenth and Twentieth Centuries, by Mark Coen and Niamh Howlin

Redburn on Zoning Out Families

Kate Redburn, a JD-PhD candidate at Yale, has posted Zoned Out: How Zoning Law Undermines Family Law's Functional Turn:

A fundamental contradiction in the legal definition of family lurks at the intersection of family law and zoning law. One set of doctrines has increasingly recognized the claims of “functional families,” the other has come to rely on the definition of “formal family”- those related by blood, marriage or adoption. As a result, the “functional turn” in family law is undermined or unstable in at least 32 states. Using original legal analysis and historical research, this paper illuminates that contradiction, explains how it came about, and argues that it must be resolved in favor of functional families. After a brief introduction (Part I), Part II surveys the "functional turn" in state family law, while Part III offers a novel history of the definition of family in zoning law, which I call the "formal turn." Part IV offers normative and practical reasons why the definition of family should be loosened, offering recommendations for legislative and judicial solutions.

Austin on Teaching "The Loving Story"

Regina Austin, University of Pennsylvania Law School, has posted The Loving Story: Using a Documentary to Reconsider the Status of an Iconic Interracial Married Couple, which is forthcoming in the Fordham Law Review:

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in the place they considered home; to be members of a multiracial community that both supported and undermined them; and to be citizens of a state that went to extraordinary lengths, because of their races, to keep them from living in Virginia and raising their children there.

Weekend Roundup

• From 3:00 pm to 4:30 pm on Sunday, October 21, Ronald Chester of the Boston College Law School will give a talk on "The Legal Philosophy of Tapping Reeve" at the Litchfield Historical Society.  He will discuss “Reeve's importance as a transitional figure in the movement of early American law. He will  highlight Reeve's progressive, activist views concerning the rights both of married women and of enslaved people, as evidenced in Reeve's publication The Law of Baron and Femme and through his work on Elizabeth Freeman's (Mum Bett) case for her freedom.”  The event is free for members of Litchfield Historical Society and $5 for non-members.  Registration Required.

• On September 31, Dean Risa Goluboff, Annette Gordon-Reed and others addressed a conference on the white supremacist rally in Charlottesville in 2017.  Cavalier Daily. 

• On Friday, October 12, the University of Aberystwyth’s Department of Law and Criminology hosts the Annual Legal Wales Conference.  Prior to the conference, at 6:15 pm on Thursday October 11, the Welsh Legal History Society and the National Library will host a lecture and dinner at the National Library “to celebrate ‘The Legal Treasures of Wales,’ including the Boston Manuscript of the Laws of Hywel Dda, purchased by the Library in 2012.”  H/t: Cymru 247.  Also Welsh: this.

• The American Political Science Association has posted its call for proposals for next year's annual meeting, which has the theme Populism and Privilege.

• ICYMI: The History Channel on the Thirteenth Amendment and convict labor.  CNN on controversial Supreme Court nominees from Fortas to Kavanaugh.  Oklahoma's oldest law firm.

• Get some penny dreadfuls into your work with Price One Penny: A database of cheap literature, 1837-60. It's is full of crime and prison-related stories from Victorian England, with American and French connections. 

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

McClain on Loving, Obergefell and the "Right Side of History"

Linda C. McClain, Boston University School of Law, has posted Prejudice, Moral Progress, and Being “On the Right Side of History”: Reflections on Loving v. Virginia at Fifty, which appears in Fordham Law Review 86 (2018): 2701-2715:

What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than the “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed its relevance; it continues to feature in post-Obergefell controversies over religious liberty and LGBT rights. Looking back at the record in Loving, this article argues that Loving illustrates a theme of generational moral progress in constitutional interpretation: laws once justified by appeals to nature, history, tradition, divine law, and the well-being of children and society are repudiated as rooted in prejudice. Virginia sought to distance its antimiscegenation law from prejudice and white supremacy by appealing to social science that identified problems posed by “intermarriage” -- particularly for children -- and rejected the idea that intermarriage was a path toward progress and freedom from prejudice. Countering with narratives of constitutional moral progress, the Lovings and their amici argued that Virginia’s law was an odious relic of slavery and a present-day reflection of racial prejudice, unsupported by modern science. The article concludes with a look at Obergefell, and the competing arguments southern states made about Loving and the lessons of history. 

Writing History Through Children

We are grateful to Joanna Grisinger, Northwestern University, for bringing to our attention the following panel at Writing History Through Children, a conference at Northwestern to be held on October 5-6:

Panel 3: Innocence and the Law,  Friday, October 5, 3:30-5:15 p.m

Chair:  Susan Pearson, Northwestern

Holly Brewer, University of Maryland: "The crucial role of children in the complex debates over slavery in England’s seventeenth century empire"

Michael Grossberg, Indiana University: “Keeping it From the Kids: Censorship and Childhood in Modern America”

Bianca Premo, Florida International University: “As a Complement to the Clinical History: Doctors, Photos, Early Puberty, and Children in Mid 20th- Century Peru and Beyond”

Comment:  Leslie Harris, Northwestern

Mayeri on Intersectionality and the Constitutionality of Family Status

Serena Mayeri, University of Pennsylvania Law School, has posted Intersectionality and the Constitution of Family Status, which appeared in Constitutional Commentary 32 (2017): 377-412:

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less crediting, their constitutional significance. Moreover, constitutional family status jurisprudence mostly overlooked claims to sexual autonomy, sex equality, and racial and economic justice arising from plaintiffs’ lived experience of intersecting status-based harms. The result is a constitutional family law canon that often obscures the social reality of legal regimes that elevate marriage at the expense of equality.

Bornstein-Makovetsky on Illicit Sex in Ottoman & Jewish Law

Leah Bornstein-Makovetsky, Ariel University, has posted Ottoman and Jewish Authorities Facing Issues of Fornication and Adultery: 1700-1900, which appeared in the International Journal of the Jurisprudence of the Family 4 (2013): 159-176:

The purpose of this article is to discuss the ways in which the eighteenth- and nineteenth-century Ottoman authorities, on the one hand, and Jewish community (secular) leaders and rabbinical courts of law (whose members are called dayanim), on the other, handled cases of adultery and fornication among Jews. The topic is obviously related to the status of Jewish law and to the history of the Jewish family as an institution in the Ottoman Empire. Our sources- primarily Responsa literature, as well as divorce lists from Jewish courts and other Jewish legal court records, and documents produced by Muslim courts of law (shari'a courts), which were the official Ottoman courts-provide a wealth of information on the topic.

CFP: Contested Kinship

[We have the following CFP.  The deadline for submissions is October 1.]
                   
Call for Papers: Contested Kinship.  International Conference, Georg-August-Universität Göttingen, 14-16 March 2019.  Keynote Speakers: Professor Margaret Homans (Yale University) and Professor Elisabeth Peel (Loughborough University)

Throughout Western history and legal traditions, kinship has been firmly rooted within the bounds of blood relations. This naturalisation of kinship continues in modern technologies: genetic research projects such as the Human Genome Project and technologies such as DNA kinship analysis extend the concept of blood relations from the unit of the family to that of ethnic groups. Legal regimes equally tend to the privileging of genetic relations, even today.

From a Cultural Studies perspective, this is highly problematic: it points towards an essentialist understanding of kinship, predetermined by birth; it naturalises subjecthood based on genetic bonds and genealogy; it attributes symbolic value to a concept of genetic sameness rather than diversity; and it supports the family as a key site of power and discipline.

Arguments for a non-essentialist redefinition of kinship have been put forward from a number of fields, including philosophy, gender studies, literary and cultural studies, and cultural anthropology. Judith Butler (2004) reads kinship as a problematic allegory for the origin of culture, arguing for an understanding of kinship beyond the normative restraints of biological relations. Similarly, Donna Haraway (1995) takes a dim view of the historically fatal consequences of blood-based kinship. However, the attraction of the genealogical origin is not limited to patriarchal narratives. Margaret Homans (2013) has looked at origin stories in adoption narratives and pointed to the paradoxical situation of feminism which on the one hand advocates non-essentialist, non-nuclear, non-heteronormative forms of kinship, and on the other hand acknowledges the power of the particular relation between birthmother and child. Damien Riggs and Elizabeth Peel (2016) finally have staked out the field of critical kinship studies and formulated its focus as "the need to move beyond a humanist account of kinship.”

This conference aims at following this premise, and seeks to further research in the field of critical kinship studies by bringing together different disciplinary perspectives into a cultural hermeneutic approach. It invites contributions from a variety of academic fields, including anthropology, history, law, literary studies and others.

Possible topics include:

 new biopolitical and legal forms of kinship: processes of naturalisation
 elective affinities, alliances, networks: kinship metaphors and kinship technologies
 the naturalisation of kinship in narratives.
 plural forms of kinship
 the myth of blood relations
 interdependencies of legal, social, medial and biotechnical discourses
 genealogy as a literary and cultural pattern
 otherkin and transhuman discourses and figures of thought

We invite abstracts of 300 words for 20-min. presentations before 1 October 2018 to contested.kinship@uni-goettingen.de

Organizers: Prof. Dr. Inge Kroppenberg, Civil Law and Legal History; Göttingen Centre for Gender Studies; Dr. Nikolaus Linder, Legal History; Göttingen Centre for Gender Studies; Prof. Dr. Barbara Schaff, English Literature and Cultural Studies; Göttingen Centre for Gender Studies

Kuby, "Conjugal Misconduct: Defying Marriage Law in the Twentieth-Century United States"

Thanks to the New Books Network, we realized that we failed to notify readers about this one when it came out in February: Conjugal Misconduct: Defying Marriage Law in the Twentieth-Century United States (Cambridge University Press), by William Kuby (University of Tennessee-Chattanooga). Here's a description from the Press:

Conjugal Misconduct reveals the hidden history of controversial and legally contested marital arrangements in twentieth-century America. William Kuby examines the experiences of couples in unconventional unions and the legal and cultural backlash generated by a wide array of 'alternative' marriages. These include marriages established through personal advertisements and matchmaking bureaus, marriages that defied state eugenic regulations, hasty marriages between divorced persons, provisional and temporary unions referred to as 'trial marriages', racial intermarriages, and a host of other unions that challenged sexual and marital norms. In illuminating the tensions between those who set marriage policies and those who defied them, Kuby offers a fresh account of marriage's contested history, arguing that although marital nonconformists composed only a small minority of the population, their atypical arrangements nonetheless shifted popular understandings of marriage and consistently refashioned the legal parameters of the institution.

A few blurbs:

'The belief that marriage as an institution is in crisis is nothing new, historian William Kuby shows us in this engaging study of early twentieth-century marital nonconformists who pushed boundaries by engaging in trial marriages, serial polygamy, or interracial marriage, among other challenges to the norm. But while 'queer' couples generated a conservative backlash, Conjugal Misconduct demonstrates that even perceived challenges to the institution of marriage could serve to reinforce its power and influence in American social life.' -- Renee Romano  

'Conjugal Misconduct provides the definitive study of the 'amorphousness' of the institution of marriage between the nineteenth and early twentieth centuries. Nonconforming heterosexual couples pursued every angle to evade restrictive state laws, often crossing state lines to find a more lenient marital regime. Their acts of defiance reshaped marital legitimacy, while revealing that the law itself could not constrain conjugal choices. For anyone who still clings to notions of marriage’s static, coherent past, this deftly written and deeply researched book proves that improvisation and even chaos shaped the legal history of heterosexual marriage.' -- Rebecca L. Davis

More information is available here.

Suk on Constitutional Protections of Motherhood

Julie C. Suk, Yeshiva University Benjamin N. Cardozo School of Law, has posted Gender Equality and the Protection of Motherhood in Global Constitutionalism, which appears in the Journal of Law & Ethics of Human Rights 12 (2018): 151-80:

Most of the world’s constitutions contain clauses guaranteeing sex equality, and many also extend the special protection of the state to mothers. The constitutional protection of motherhood is undertheorized and neglected in global constitutional discourse, perhaps because jurisdictions like the United States view the special protection of women as contrary to gender equality. This Essay explores the feminist meanings and possibilities of constitutional mother- hood clauses, by focusing on Germany, where they originated in 1919. While motherhood clauses have had complex relationships with a range of feminist agendas, they solidified the notion that social reproduction was a subject for constitutional lawmaking. Addressing twenty-first century gender inequalities requires a more robust engagement of women’s disproportionate burdens in social reproduction. Having opened up a constitutional discourse around the challenges of social reproduction, motherhood clauses and gender equality guarantees can drive the search for new solutions.

MacDonald and Dildar on Married Women's Property Acts and Divoce Rates

It’s gated, but we’re noting anyway the on-line publication in Social Science History of Married Women’s Economic Independence and Divorce in the Nineteenth- and Early-Twentieth-Century United States, by Daniel MacDonald and Yasemin Dildar:

We analyze the effects of the Married Women’s Property Acts and Earnings Acts (EAs) on divorce rates in the late-nineteenth- and early-twentieth-century United States. We find that the property acts increased divorce rates, which is consistent with the predicted outcome, in household extensive bargaining models, of an increase in the married woman’s relative bargaining power. We also find some evidence that the EAs had a positive effect on divorce rates, though it is not statistically significant after accounting for the possibility that divorce rates changed prior to the enactment of an EA. To support our causal argument, we control for regional trends in the divorce rate and account for the timing of the laws’ effects. We also assess alternative explanations for the rise in divorce rates during the late nineteenth century, including age structure, divorce law, urbanization, economic development, and foreign immigration, and we find that only age structure and urbanization positively affected divorce rates along with the property acts. Finally, we provide support for our argument from court cases in which the acts were used to defend a woman’s property rights against claims from her ex-husband.