The Limits of Law: Cases

We asked the 2018-19 Davis Fellows the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Here is one set of answers that relate to each scholar's area of study (our other posts in this series are here and here):

Weekend Roundup

• Our friends at the Federal Judicial Center have posted the latest in the Center’s series of teaching materials on Famous Federal Trials.  It’s U.S. v. New York Times, that is, The Pentagon Papers Case, in which "the publication of secret government documents about the Vietnam War leads to a federal court conflict pitting national security against freedom of the press."

• Recently posted over at Law and Political Economy (LPE) blog is the symposium Piercing the Monetary Veil.  Contributors include Christine Desan and Roy Kreitner.

• Boy, we're sorry we couldn't attend this one: Robert W. Gordon, Stanford Law, on Private Practices, Public Projects: Reflections on Connections between Work for Clients and Public Activities in the History of the Legal Profession last Thursday at Northwestern University.  H/t: Christopher Schmidt.

• Be sure to check out the redesigned website of the Historical Society for the District of Columbia Circuit.

• Mark W. Gifford, Bar Counsel for the Wyoming State Bar, has published Regulation of the Practice of Law in Wyoming: A 150-Year Walk Through the History Books in the Wyoming Law Review 19 (2019): 1-43.

• The Washington Lawyers’ Committee for Civil Rights and Urban Affairs announced the publication of a symposium on its 50th anniversary in the Howard Law Journal. 

• An updated webpage helps catch us up on legal history at Edinburgh Law School. 

• Thomas C. Britton will discuss the history and development of the SIU School of Law at noon, May 21, in the Hiram H. Lesar Law Building Courtroom on the Southern Illinois University Carbondale campus.  He will base his talk on a chapter in his recently published Southern Illinois University at 150: Growth, Accomplishments, and Challenges.

• "The 2020 BHC Doctoral Colloquium in Business History will be held in conjunction with the BHC annual meeting . . . in Charlotte Wednesday, March 11 and Thursday, March 12. Typically limited to ten students, the colloquium is open to early-stage doctoral candidates pursuing dissertation research within the broad field of business history, from any relevant discipline.  Applications are due by 15 November 2019 via email to BHC@Hagley.org."  More on this prestigious competition of the Business History Conference is here. 

• My erstwhile and present Georgetown Law colleagues Mark Tushnet, Harvard Law School, and Louis Michael Seidman, Georgetown University Law Center, have posted On Being Old Codgers: A Conversation about a Half Century in Legal Education, a “conversation, conducted over three evenings,” capturing “some of our thoughts about the last half century of legal education as both of us near retirement.”  DRE  

• We didn’t realize that Attorney General William Barr contributed an oral history to the Miller Center for Public Affairs series on the George W. Bush presidency.  Thanks, WaPo!

• In WaPo's "Made by History" series: Victoria Saker Woeste on the dark history of the raisin mafia.  Sarah A. Seo on traffic stops.

• ICYMI: Mary Ziegler on recent developments in the campaign to overturn Roe on NPR (et al.).  The History Channel’s notice of Dan Abrams and David Fisher’s Theodore Roosevelt for the Defense: The Courtroom Battle to Save His Legacy.  Also, the History Channel on the first Social Security check.  More on legal historians as partners: some, it seems, make dreams come true.

• You can register now here for the upcoming workshop on Law, Difference, and Healthcare at Princeton's Davis Center. It is organized by George Aumoithe and runs June 6-7, 2019.

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

"A Dangerous Idea" at the National Constitution Center

A Dangerous Idea, a session on the history of eugenics in the United States, will be held at the National Constitution Center in Philadelphia on May 2, 2019 from 06:30 PM until 08:00 PM. 

Exactly 92 years after the infamous Buck v. Bell decision, the Center presents a partial screening of “A Dangerous Idea: Eugenics, Genetics and the American Dream”—an award-winning documentary exploring the legal history of the eugenics movement in the United States. Following the screening, the film’s executive producer, writer, and attorney Andrew Kimbrell, acclaimed author and journalist Daniel Okrent, and law and bioethics scholars Paul Lombardo and Dorothy Roberts discuss the dark history of eugenics and the Constitution. CLE credit available. A DVD signing with Andrew Kimbrell and book signing with Daniel Okrent will follow the program.

H/t: Main Line Today. --Dan Ernst

Grossman on Medical Marijuana Regulation

Lewis A. Grossman, American University Washington College of Law, has posted Life, Liberty, (and the Pursuit of Happiness): Medical Marijuana Regulation in Historical Context, a draft chapter from his book Choose Your Medicine: Freedom of Therapeutic Choice in American History and Law, which is forthcoming from the Oxford University Press:

The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception of a single promising decision in 1975, courts have uniformly rejected arguments for medical marijuana access. But the 1996 passage of Proposition 215 in California triggered a tremendous wave of state measures legalizing medical cannabis, as well as a dramatic change in American attitudes about the issue.

The chapter recounts this history in light of the special legal, political, and rhetorical challenges medical cannabis advocates have faced. First, many officials have opposed the legalization of medical marijuana, regardless of whether it offers therapeutic benefits, because of the public health harms and moral degradation they associate with the use of pot. Second, marijuana’s designation as a Schedule I substance under the Controlled Substances Act of 1970, and the DEA’s rejection of multiple citizen petitions to reclassify it, has placed extremely high obstacles in the way of researchers interested in scientifically assessing marijuana’s therapeutic efficacy. Third, federal government policies have lagged behind public preference and state law. Finally, medical marijuana supporters have had to negotiate an invaluable but fraught relationship with advocates for comprehensive marijuana legalization. The perspectives and goals of these two groups have overlapped and conflicted in fascinating and unexpected ways.

Burrell and Kelly on British medicine and patents

Robert Burrell (University of Sheffield) and Catherine Kelly (University of Bristol) have co-authored the article, "Myths of the medical methods exclusion: medicine and patents in nineteenth century Britain" in Legal Studies 38 (2018): 4, 607-26. Here's the abstract: 

This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process.

Further information is available here.  

Fahmy on Islamic Law and Forensic Medicine

Out this month with the University of California Press is In Quest of Justice: Islamic Law and Forensic Medicine in Modern Egypt by Khaled Fahmy, University of Cambridge. From the press: 

In Quest of Justice provides the first full account of the establishment and workings of a new kind of state in Egypt in the modern period. Drawing on groundbreaking research in the Egyptian archives, this highly original book shows how the state affected those subject to it and their response. Illustrating how shari’a was actually implemented, how criminal justice functioned, and how scientific-medical knowledges and practices were introduced, Khaled Fahmy offers exciting new interpretations that are neither colonial nor nationalist. Moreover he shows how lower-class Egyptians did not see modern practices that fused medical and legal purposes in new ways as contrary to Islam. This is a major contribution to our understanding of Islam and modernity.

 Some reviews: 

"Through extensive research in Egyptian archives, engaging and creative scholarship, and deep engagement with the history of colonial law and medicine, Khaled Fahmy has produced a masterpiece that confirms his standing as the preeminent social and cultural historian of nineteenth century Egypt." -Eugene Rogan

"Fahmy rewrites the narrative of legal and institutional development by bringing in the Egyptian state with its new capacities and its elite as actors with clear interests and strategies of their own, as well as the broader Egyptian population whose protests and accommodations shaped this history.  This book will make a very major impact in a variety of fields, including those of the history of Islamic law and legal institutions, public health, and urban planning in Egypt." -Judith Tucker

"A deft and original historian, Khaled Fahmy mobilizes the richly populated medical and legal records of a hybrid system of mid-nineteenth century tribunals to rethink the foundations of a distinctive Egyptian modernity." -Brinkley Messick

"Khaled Fahmy's In Quest of Justice is an excellent study on nineteenth-century Egyptian modernization in the Ottoman social and cultural context.The author uses the human body as a metaphor to explain modernization politics and elegantly arranges the book around the five senses: sight, sound, smell, taste and touch. We read about practices such as dissection, sewers, vaccination, torture, quarantine, market control and procedural justice. In addition, Fahmy elaborates on the lives of the non-elite population in a fascinating way, based on archival documents." -Rudolph Peters

Further information is available here.

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

Dey on plantations, law and health in colonial India

Earlier this year, Arnab Dey, SUNY Binghamton, published "Diseased Plantations: Law and the political economy of health in Assam, 1860-1920" in Modern Asian Studies (March 2018), 645-82. Here is the abstract:

This article argues that ideas of health and disease in the Assam tea plantations of northeastern India exceeded instrumental logics of bodily disorder, medical ‘objectivity’, and preventive cure. It looks at cholera, kala-azar (or black-fever), and malaria—the three main killers in these estates—to show that imperatives of private capital and law conditioned and constrained parameters of well-being, mortality, and morbidity in these plantations. It therefore suggests that epidemiological theories and praxis emerged from a simultaneous—but expedient—reading of three versions of the labour body: the pathological, the productive, and the legal. The overlaps between commerce, law, and pathogens provide for a unique, if not exceptional, social history of health in colonial India.

Further information is available here. 

Weekend Roundup

• In an op-ed in the Washington Post, Ian Ayres (Yale Law School) and John Fabian Witt (Yale Law School) offer Democrats a "Plan B" for the Supreme Court. "'Court packing' is one of the most controversial threads in the history of American politics," but what about "court balancing"?

• More praise for the legal historical scholarship on emoluments by Georgetown law professor John Mikhail.  H/t: David Edmon.  Also Seth Barrett Tillman and Josh Blackmon respond to Judge Messitte’s opinion in that Emoluments Clause decision on the Volokh Conspiracy.

• At the intersection of legal and medical history, Atlas Obscura has this piece on the grim profession of  the "railway surgeon" in the 19th-early 20th century.  

• JSTOR has updated its list of nine books from the Max Planck Institute for European Legal History now available on the platform.

• Bennett Liebman, Albany Law School, has posted Union College, Schenectady and the New York State Lottery in the 19th Century, a paper that especially treats how the lottery “affected the operations of Union College in Schenectady, New York" before the Civil War.

• Robert J. Miller, Arizona State University, will speak on “Doctrine of Discovery, Manifest Destiny and Oregon” at the Coos History Museum, Coos Bay, Oregon, on August 7.  More.

• ICYMI: In The Smithsonian: The Massacre of Black Sharecroppers That Led the Supreme Court to Curb the Racial Disparities of the Justice System.  Watch the home movies of FDR's secretary, Missy LeHand.  A visit to the Museum of Tort Law.  Also: an unpardonable offense.

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

Price on Quarantines and Federalism

Polly J. Price, Emory University School of Law, has posted Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine, which appears in the Emory Law Journal 67 (2018): 491-543:

This Article explores the origins and limits of the federal government’s interstate quarantine power. In the event of a public health emergency, state and local political boundaries may generate self-interested measures that risk substantial harm to neighboring states. To more effectively stem a national epidemic and to better protect the interests of regional populations, should the federal government step in to override a state’s protective quarantine? Neither current statutory authority nor how we have thought about it in the past prevents a greater national role. This Article shows how to expand our view of the federal government’s interstate quarantine authority as an important tool to respond to public health threats affecting more than one state.

Malleck on drugs in Canadian legal history

We missed this one in 2015, when Dan Malleck, Brock University, published When Good Drugs Go Back: Opium, Medicine, and the Origins of Canada's Drug Laws with UBC Press. From the publisher:

There is something enduring about the image of the Victorian drug addict, languishing in the smoky confines of an underground opium den, the embodiment of moral lassitude. When Good Drugs Go Bad reveals that in nineteenth-century Canada, most Canadians were drug users – everyday people taking addictive drugs prescribed by their doctors and purchased at the local pharmacy.

Throughout the 1800s, opium and cocaine could be easily obtained to treat a range of ailments. Drug dependency, when it occurred, was considered a matter of personal vice. Near the end of the century, attitudes shifted and access to drugs became more restricted. How did this happen?

Dan Malleck examines the conditions that led to Canada’s current drug laws. Drawing on newspaper accounts, medical and pharmacy journals, professional association files, asylum documents, physicians’ case books, and pharmacy records, he demonstrates how a number of social, economic, and cultural forces converged in the early 1900s to influence lawmakers and criminalize addiction. His research exposes how social concerns about drug addiction had less to do with the long pipe and shadowy den than with lobbying by medical associations, a growing pharmaceutical industry, and national concern about the morality and future of the nation.

Scholars and students of the history of medicine, the history of law, and social history, will enjoy this engagingly written book about drugs, alcohol, tobacco use, and legislation in Canada. This book will also be of interest to professionals who work in the area of drug advocacy and addiction.

Praise for the book after the jump:

Goold on Owning Body Parts

Imogen Goold, St Anne’s College Oxford has published Flesh and Blood: Owning our Bodies and Their Parts with Hart Publishing. The book is in part historical in its approach. From the press:

For centuries, human bodies and their parts have been used for scientific and medical research, as a source of transplant organs and even for the creation of artistic works. Human tissue is taken, tested and stored during forensic investigations and stored in databases across the country. We can examine the DNA in almost any cell of the body to yield personal information, while increasingly tissue's importance for research and the production of treatments has seen it become an item of commerce. Tissue is both object and information, laden with psychological, cultural and emotional significance while also being a tool that is used daily in medicine, criminal investigations and research. Its use presents complex challenges for legal regulation. As a result common law legal systems have so far struggled to produce a coherent, principled approach to regulating the use of human body parts. Drawing on the fields of ethics, law and history, the author develops an interdisciplinary and holistic account of the challenges arising from human tissue use and the options for regulation. Part one of the book contextualizes the difficult issues surrounding the use of human tissue by presenting an historical account of how we have dealt with bodies and their parts since ancient times. Part two provides a detailed examination of the law covering tissue use in the United Kingdom, Australia and the United States. Part three explores the range of regulatory mechanisms that might be applied to human tissue, focusing on the notion of property at common law. The book concludes by analysing how property principles might be applied to human tissue and argues for why they should be.

Further information is available here. 

Butler on Forensic Medicine in Medieval England

Back in 2015, Forensic Medicine and Death Investigation in Medieval England by Sara M. Butler, Loyola University New Orleans came out with Routledge. From the press:

England has traditionally been understood as a latecomer to the use of forensic medicine in death investigation, lagging nearly two-hundred years behind other European authorities. Using the coroner's inquest as a lens, this book hopes to offer a fresh perspective on the process of death investigation in medieval England. The central premise of this book is that medical practitioners did participate in death investigation – although not in every inquest, or even most, and not necessarily in those investigations where we today would deem their advice most pertinent. The medieval relationship with death and disease, in particular, shaped coroners' and their jurors' understanding of the inquest's medical needs and led them to conclusions that can only be understood in context of the medieval world's holistic approach to health and medicine. Moreover, while the English resisted Southern Europe's penchant for autopsies, at times their findings reveal a solid understanding of internal medicine. By studying cause of death in the coroners' reports, this study sheds new light on subjects such as abortion by assault, bubonic plague, cruentation, epilepsy, insanity, senescence, and unnatural death.

Praise for the book:

"…by effectively framing the inquest socially and legally, her book makes a convincing case for a fundamental shift in the history of coronership and, opening up a wonderful set of sources, it tables fresh questions about medieval life, justice and knowledge." - Silvia De Renzi

“Butler’s understanding of the Coroners’ Rolls (their internal reports to the Crown) is profound, detailed, imaginative, and sympathetic. What emerges is a portrait of the coroner as, in the main, conscientious and honest…In sum, Butler’s latest book, based on a deep knowledge of the primary sources, is an excellent study of a neglected institution of English medieval law and government.” - Faith Wallis

Building upon her experience writing the book, Sara Butler encourages medical historians to make better use of legal sources in her recent blogpost, "Reading the Legal Record like a Physician" (H/t: Legal History Miscellany)

Further information about her book is available here.

Medical Cultures, Traditions, and Law

[We have the following conference announcement.]

Medical Cultures, Traditions, and Law (May 5-7, 2017)

Keynote dialogue:

"Intellectual Property, Debt, and Traditional Knowledge"

MADHAVI SUNDER  law, university of california davis

CHIDI OGUAMANAM  law, university of ottawa

Conference details: 

The faculty conveners of the Global Medical Cultures and Law Research Group have joined forces to examine three phenomena over the long 20th century: the globalization of biomedicine, the codification of traditional medicine, and the constitutive role of the law in these processes.

All societies have healing systems. Yet over the last 150 years, one system has become dominant around the world: biomedicine. While it might be tempting to attribute biomedicine’s successes to its effectiveness in curing diseases and extending lives, the historical reality has been less clear-cut. The resurgence of interest in traditional medicine in the second half of the twentieth century arguably grew out of critiques of biomedicine’s limits and a burgeoning awareness that different healing practices, long stifled or marginalized, deserved closer scrutiny. Until now, few scholars have attempted to examine these dynamics together or assess their legal underpinnings.

Our efforts are supported by the Science in Human Culture program and work in synergy with other interdisciplinary programs across Northwestern including international studies, medical humanities, global health, and legal studies. Group members come from history, law, anthropology, political science, sociology, and public policy, and bring a wide variety of regional expertise to the table.

Research questions that we plan to address between 2016 and 2019 include:

• To what extent and through what legal, institutional, economic, and political instruments has biomedicine been globalized?
• In what ways did different disciplinary, geopolitical, economic, and legal phenomena play a role in codifying “traditional medicine”?
• What kinds of ideas about culture, heritage, and ancestry operate in controversies over patenting traditional knowledge and medicine? How are these conflicts different from those surrounding access to drugs and patent-protected versus generic options?

Co-directors: 

HELEN TILLEY  history, 2016-17 coordinator

JEANNETTE COLYVAS  sesp

CAROL HEIMER  sociology

IAN HURD  political science

LAURA PEDRAZA-FARIÑA  law

REBECCA SELIGMAN  anthropology

Further information is available here.