Weekend Roundup

• Penn Law's notice of Serena Mayeri's new book, Marital Privilege.  

• BC Law's notice of Aziz Rana's receipt of the annual book prize of the Society for US Intellectual History for The Constitutional Bind. 

• The Supreme Court Historical Society has a series of short videos, Breaking History, based on recent or forthcoming content in the Journal of Supreme Court History.   Helen J. Knowles-Gardner discusses "Without a Little Help from Your Friends: The Supreme Court's Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel Patterson (1958)" and Jonathan Lurie discusses his forthcoming review of Robert C. Post’s new contribution to the Oliver Wendell Holmes Devise History. 

• Asheesh Kapur Siddique, University of Massachusetts-Amherst, on "the long history of governments attempting to restrict access to documents about their inner workings" (HNN).

• Katherine Gregory, Mississippi State University, on the threat funding cuts pose to political archives deposited in state universities (The Conversation).  

• Over at Balkinization: a symposium has begun on Richard Primus's The Oldest Constitutional Question: Enumeration and Federal Power. Look out for contributions from Will Baude (Chicago), William Ewald (Penn), Jonathan Gienapp (Stanford), Abbe Gluck (Yale), Sandy Levinson (Texas), John Mikhail (Georgetown), and Christina Ponsa-Kraus (Columbia). 

• "Tulane Law Students Explore the Origins of Maritime Law in Greece" (Tulane Law). 

• "Quentin Skinner responds to a wide range of questions centred primarily on the arguments of his Liberty as Independence: The Making and Unmaking of a Political Ideal (2025) (GIH). 

• Time's Made by History:  Crushing Dissent is as American as Protest Itself by Shira Lurie.   The Founders Knew Great Wealth Inequality Could Destroy Us by Daniel Mandell.  Why American Revolutionaries Fought to Protect Habeas Corpus by Zara Anishanslin.  Inherit the Wind and the Scopes Trial in Memory by Charlotte M. Canning. 

• The Jacksonville University College of Law is hosting “250 Years of Independence: Fortifying America’s Commitment to Democracy for All," a traveling exhibit curated by the American Bar Association's Standing Committee on the Law Library of Congress (Florida Bar). 

• At the American Prospect: Joseph A. McCartin (Georgetown University), "Requiem for the Wagner Act" (h/t: Bunk)

• ICYMI: The decline of postliberalism (Vox). Michael Kazin on the Scopes Trial at 100 (NYT). Dahlia Lithwick and Mark Joseph Stern ask, "Can Ketanji Brown Jackson’s Take on History Be a Corrective to Amy Coney Barrett’s?" (Slate).  Gerard N. Magliocca on Robert Jackson's Youngstown concurrence as "the Greatest 'No Kings' Essay in History" (Slate).  The Harvard law faculty's summer reads. John Yoo on Richard Epstein on the original understanding of the war powers (AEI).

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

Brinkman on "Sea Power, Neutrality, and Prize Law in the Seven Years' War"

Cambridge University Press has published Balancing Strategy: Sea Power, Neutrality, and Prize Law in the Seven Years' War (2024), by Anna Brinkman (King's College London). A description from the press:

What is the relationship between seapower, law, and strategy? Anna Brinkman uses in-depth analysis of cases brought before the Court of Prize Appeal during the Seven Years' War to explore how Britain worked to shape maritime international law to its strategic advantage. Within the court, government officials and naval and legal minds came together to shape legal decisions from the perspectives of both legal philosophy and maritime strategic aims. As a result, neutrality and the negotiation of rights became critical to maritime warfare. Balancing Strategy unpicks a complex web of competing priorities: deals struck with the Dutch Republic and Spain; imperial rivalry; mercantilism; colonial trade; and the relationships between metropoles and colonies, trade, and the navy. Ultimately, influencing and shaping international law of the sea allows a nation to create the norms and rules that constrain or enable the use of seapower during war.

Praise from reviewers:

'This is imperial, military, legal and maritime history at its scrupulous and creative best, at once both micro- and macro-historical. Through a detailed reconstruction of four cases coming before Britain's Court of Prize Appeal and concerning two Dutch and two Spanish vessels captured during the Seven Years War, Anna Brinkman convincingly reveals for the first time the overarching strategic role that the court played in balancing domestic and international law to keep the Dutch Republic and Spain neutral during the global conflict. Particularly nuanced - and wholly unique in prize history - is her attention to the human dimension of legal process: the myriad of people, personalities, ties, interests, and environments that destabilized or undergirded neutrality. A triumph of insight and scholarship.' -- David Hancock

'Balancing Strategy opens a window into the complex interplay of law, empire, seapower, and strategy. Through meticulous and well-documented case studies that incorporate legal records, private political accounts, and the popular press, Brinkman offers new insight into how Britain sought legitimacy for its increasing projection of power on the global stage.' -- Sarah Kinkel

An interview with Brinkman is available here, at New Books Network.

-- Karen Tani

Simon, "The Pirates' Code: Laws and Life Aboard Ship"

Reaktion Press has published The Pirates' Code: Laws and Life Aboard Ship, by Rebecca Simon (Santa Monica College). A description from the Press:

Pirates have long captured the imagination with images of cutlass-wielding swashbucklers, eye patches and buried treasure. But what was life really like on a pirate ship? Piracy was a risky, sometimes deadly occupation, and strict orders were essential for everyone’s survival. These ‘Laws’ were sets of rules that determined everything from how much each pirate earned from their plunder to compensation for injuries, punishments and even the entertainment allowed on ships. These rules became known as the ‘Pirates’ Code’, which all pirates had to publicly swear by.

Using primary sources such as eyewitness accounts, trial proceedings and maritime logs, this book explains how these codes were the key to pirates’ success in battle, both on sea and on land.

A sample of advance praise:

"A comprehensive and highly engaging study of the operations and everyday life at sea on pirate ships in the "Golden Age" of piracy. Using a wide range of archival material, Rebecca Simon has produced a meticulous examination of how pirate crews used "articles" to organise their ships and lives. An in-depth exploration of not only the most notorious pirates and their lesser-known brethren, but every aspect of pirate life from the motivations of men to turn to piracy, to how they shared out plunder and food, to discipline and health care for injured pirates. The Pirates' Code is a pleasure to read." -- Elaine Murphy

More information is available here. An interview with the author is available here, at New Books Network.

-- Karen Tani

Congress Investigates the Titanic

The Carl Levin Center for Oversight and Democracy at the Wayne State University Law School, in collaboration with the U.S. Capitol Historical Society, has released its latest Portrait in Oversight.  It is devoted to Congressional hearings in 1912 on the sinking of the Titanic, which led to such reforms as the International Convention for the Safety of Life at Sea and the International Ice Patrol. 

--Dan Ernst

Anderson on the Merchant Ship as Proto-Corporation

Robert Anderson, Pepperdine University Rick J. Caruso School of Law, has posted  The Sea Corporation:

Over the two centuries the corporation has become the dominant form of business organization, accounting for more productive assets than all other business forms combined. Yet the corporation is relatively young for a legal institution of such economic importance. As late as the middle of the nineteenth century, most business was still conducted through partnerships, with corporations active only in a few industries. Only in the ensuing decades did restrictions ease allowing the corporation to secure its economic dominance.

Commentators widely attribute the corporation’s success to a set of features thought to be unique to the corporation, including limited liability, transferable shares, centralized management, and entity shielding. Indeed, the consensus among economic and legal historians is that these essential corporate features created a unique economic entity that rapidly displaced the obsolete partnership.

This Article argues that these economic features were not unique to the corporation, nor did

NYPL Digital

they first develop in the business corporation. Over many centuries, the maritime law developed a sophisticated system of business organization around the entity of the merchant ship, creating a framework of legal principles that operated as a proto-corporate law. Like modern corporate law, this maritime organizational law gave legal personality to the ship, limited liability, transferable shares, centralized management, and entity shielding. The resulting “sea corporations” were the closest to a modern corporation that was available continuously throughout the 17th through early 19th centuries in Europe and the United States.

The fact that maritime law developed all the most important features of corporate law offers important lessons for business organizational law itself. The parallel development of the same characteristics, with different and independent mechanisms, is strong evidence of the economic importance of the features of the modern corporation. The maritime law employed a unique device—the maritime lien—to achieve the same economic results as the nascent corporation. The key turn was the use of a property mechanism, rather than the contract mechanisms of partnership law, to implement in rem attributes. The vessel is property come to life in the eyes of the law, developing a form of legal personhood. Viewed in this broader context, the corporation is not a unique institutional solution to recurrent economic problems; it was a convenient vehicle for expanding and generalizing a set of economic solutions.

This new organizational theory of maritime law provides potentially important lessons for both maritime law and business organizations law. First, the theory provides a guiding principle for otherwise disorganized features of maritime law. It suggests that courts should explicitly interpret maritime law as a form of business entity law, keeping maritime law’s distinctive purposes, but drawing from the rich theoretical insights of law of other business associations to inform its unique institutions. At the same time, the long history of maritime law as business organization law provides hints for enduring challenges in corporate law, such as externalities of limited liability on involuntary creditors, such as tort creditors. Here, maritime law provides time-tested solutions, providing a system that provides priority for such creditors over contract creditors, solving one of corporate law’s most vexing problems.

--Dan Ernst

Merkin's Legal History of Marine Insurance

Rob Merkin, University of Reading, has published Marine Insurance: A Legal History (Edward Elgar):

This authoritative work forms a comprehensive examination of the legal and historical context of marine insurance, providing a detailed overview of the events and factors leading to its codification in the Marine Insurance Act 1906. It investigates the development of the legal principles and case law that underpin the Act to reveal how successful this codification truly was, and to demonstrate how these historical precedents remain relevant to marine insurance law to this day.

Beginning with the pivotal year of 1756, Rob Merkin QC organises his analysis era by era, situating the leading cases and emerging fundamentals of the marine insurance industry in the context of external events such as war, the growth of free international trade, and the expansion of empire. Offering insight into the origins of familiar legal principles in the field, the book provides a deeper understanding of the legal framework within which historical events took place and how this shaped both the development of marine insurance law and the political and economic circumstances surrounding it.

–Dan Ernst

Reclamation

One thing peculiar about land is that we are predisposed to encounter it as if it was always there, seemingly naturalized from the outset without a beginning. Because histories are built upon land, its own history is obscured by later infrastructure, quickly escalating the complexity of the territory. My current book project tentatively titled Overflow - History of Land Reclamation in the British Empire focuses on the history of seaward land reclamation which entails the formation of artificial land surfaces that extend outwards over the sea using advanced geo-engineering techniques. I was motivated by the avid land reclamation that occurred in Singapore which increased in land size by 23% from 587 square kilometers in 1974 to 725 square kilometers today (slightly larger than DC metropolitan area). 

Intensive land reclamation transformed coastal areas from the late nineteenth century. Colonial governments were initially drawn to the supposed lack of ambiguity concerning the status of reclaimed land - there was little possibility of indigenous inhabitants or prior landowners of reclaimed territory so authorities were theoretically free to plan without any resistance. A territorial blank slate was the ultimate goal of colonial officials after all. But the prohibitive costs of land reclamation projects make it a last resort in expanding territory. While local colonial governments eagerly embarked on such projects, higher authorities within the imperial hierarchy based in London often asked “Is this really necessary? and “could something else be done instead?” to ensure that cheaper options were explored first. Land reclamation efforts were extremely expensive, and often completely debt-financed and thus formed risky undertakings involving huge volumes of sand, specialized equipment and vehicles, costly research into the suitability of soil and sand with its particular characteristics, labour, logistical coordination, and resettlement of people who lived in areas adjacent to reclamation sites. In Hong Kong, private enterprise was historically powerful and initiated reclamation projects. Armenian businessman Catchick Paul Chater founded property developer company Hong Kong Land which reclaimed 59 acres of land in the colony between 1889 and 1903 for example. The interests of long-established dock companies such as Butterfield and Swire, and Jardine and Matheson were aligned with that of the colonial government in the late nineteenth century although they drifted apart in the first half of the twentieth century. While businesses entrenched themselves in the area of the port, successive government administrations sometimes differed greatly from their predecessors to the extent of breaking ranks with previous policies. In addition, while the cost of reclamation was relatively low during the early years since landfill was made up of rock and soil found in abundance near sites, it became progressively expensive because fills are not easily available anymore and the sea to be reclaimed was deeper. The Admiralty too weighed in, anxious about encroachment to existing dockyard facilities. 

As land reclamation became popular throughout Empire, the coastal feature known as the foreshore which is neither wet nor always dry due to the ebb and flow of the incoming tide gained prominence. As a buffer zone, the foreshore was valuable because it provided entry to the sea. From 1830s onwards, the British government granted ownership rights to foreshores in parts of the British Isles opening them up further to construction and development but these rights were suspended in Empire. Historically, denizens of undeveloped waterfronts had survived and thrived on it because they occupied cheap land. Increasingly from the late nineteenth century onwards, the foreshore became more prized throughout Empire as a gateway to land reclamation which brought a new enemy on the horizon for residents in coastal regions - coastal development. Even when they were compensated by government authorities, rising land prices post-reclamation meant that they were unable to buy their own property back in order to live there again. Something about control over watery spaces, a relatively new form of domination, resists risk assessment necessary for compensation requests. This “hydroborder,” to borrow Isabel Hofmeyr’s term, “where the ‘normal’ anxieties of the boundary were exacerbated by ecological uncertainty” serves as the fulcrum for change.

Hofmeyr, Isabel. “Provisional Notes on Hydrocolonialism.” English Language Notes. 57, 1 (April 2019): 11-20.

--Nurfadzilah Yahaya

Dingle's Conversations with Prichard

Lesley Dingle, University of Cambridge, has posted Conversations with Michael J. Prichard: The Fun of Legal History and the Triumph of Research Over Administration:

Michael Prichard was born before the Second world war and lived through the bombing and destruction of much of London. When he entered university in 1945, King’s College London had reoccupied its old quarters in the badly-damaged Somerset House, and along with LSE and UCL had pooled teaching resources to overcome staff shortages and accommodation damage. This inadvertently gave Michael a rich pool of mentors upon which to found his career, and who served him well in later years. He entered Queens’ College Cambridge in 1948 and experienced the unique post-war phenomena of the “returning warriors”, which continued, along with the “weekenders”, when he became a fellow at Gonville & Caius in 1950. Here he has remained, and is still a Fellow, seventy years later.

Michael Prichard (Squire Law Library)

His legacy is a fund of memories of a life-long journey through changing landscapes of legal research, teaching, and college and faculty administration. I first interviewed Michael for the Eminent Scholars Archive in 2012, where his biography and general academic reminiscences are set forth. I now revisit aspects of these, following a conversation I had with David Yale for ESA in November 2019. David was Michael’s career-long colleague, and his interview shone new light on their decades of joint endeavour unravelling the development of maritime law in the British Isles. Shortly after David’s reminder of the magnitude of their project, an encounter with Professor David Ibbetson, and most-recently a meeting with Michael, now in his 93rd year, have spurred me to summarise particular aspects of Michael’s varied research projects. In the process, I shall emphasise the overall sense of adventure, and enjoyment - in short “fun”, with which he explored the history and jurisdictional intricacies of the Admiralty Court (jointly with David Yale), presented his enlightened insights into the evolution of aspects of tort law, and explained his research of the few esoteric conundrums in which a retiree was able to indulge.

--Dan Ernst

Mawani on Oceans of Law

Renisa Mawani, University of British Columbia, has published Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire with Duke University Press. From the publisher: 

In 1914 the British-built and Japanese-owned steamship Komagata Maru left Hong Kong for Vancouver carrying 376 Punjabi migrants. Chartered by railway contractor and purported rubber planter Gurdit Singh, the ship and its passengers were denied entry into Canada and two months later were deported to Calcutta. In Across Oceans of Law Renisa Mawani retells this well-known story of the Komagata Maru. Drawing on "oceans as method"—a mode of thinking and writing that repositions land and sea—Mawani examines the historical and conceptual stakes of situating histories of Indian migration within maritime worlds. Through close readings of the ship, the manifest, the trial, and the anticolonial writings of Singh and others, Mawani argues that the Komagata Maru's landing raised urgent questions regarding the jurisdictional tensions between the common law and admiralty law, and, ultimately, the legal status of the sea. By following the movements of a single ship and bringing oceans into sharper view, Mawani traces British imperial power through racial, temporal, and legal contests and offers a novel method of writing colonial legal history.

Praise for the book:

“Charting the 1914 voyage of the SS Komagata Maru and focusing on the sea, the ship, the manifest, the indigenous, and the fugitive, Renisa Mawani makes a compelling case against the European myth of the ‘free sea.’ Arguing for a new ‘ocean as method’ and foregrounding the co-emergence of maritime law and the policing of immigration, this book will rightly be seen as a legal and historical tour de force.” -Gaurav Desai

“This beautifully written and richly illustrated book provides a new global and oceanic history perspective on the journey of the Komagata Maru. Ranging across theories of law, time, and space, Renisa Mawani places an event limited in time and scale into some of the large questions and themes of history: migration, mobility, maritime jurisdiction, race, legal rights, and anticolonial radicalism.”-Clare Anderson

Further information is available here.

A conversation between Bishara and Seng

In April, Comparative Studies in Society and History hosted an online exchange between two of its authors writing about law on opposite sides of the Indian Ocean. Here's the opening set-up for a conversation between Fahad Bishara, University of Virginia and Guo-Quan Seng, Cornell University:

LEGAL ANOMALY

FAHAD AHMAD BISHARA, “‘No country but the ocean”: Reading International Law from the Deck of an Indian Ocean Dhow, ca. 1900”

GUO-QUAN SENG, “The Gender Politics of Confucian Family Law: Contracts, Credit, and Creole Chinese Bilateral Kinship in Dutch Colonial Java (1850s–1900)”


In “No country but the ocean”: Reading International Law from the Deck of an Indian Ocean Dhow, ca. 1900,” Fahad Ahmad Bishara considers the legal imaginaries of Indian Ocean mariners sailing out of the port of Sur, on the Arabian Peninsula. Maritime legal culture entailed a domestication and vernacularization of international law, not least in the ways it was materially manifested in flags and, for these captains, efficacious French documents (titres). These objects-at-sea extended legal regimes of the land, but also refracted and transformed them to captains’ own idiosyncratic purposes. Flags and documents were used to foment exchanges far beyond what they actually secured or promised; for example, titres were freely transferred from one ship, and sailor, to another. Bishara recounts a microhistory of a 1905 court case of Muscat-based dhows suspected of slave-trading, arbitrated at the Hague. The essay reveals the affordances and limits presented to seafarers sailing under a French flag and bearing French papers, though on a mostly British sea. At the same time, it highlights the processes by which dhow captains from Sur appropriated these imperial technologies and grounded them in their own world, framing their encounter with the British navy as the latest in a long string of imperial entanglements at sea, and anchoring the French titres in a regional regime of safe-conduct passes.

Attending to a different form of legal anomaly, Guo-Quan Seng’s essay, “The Gender Politics of Confucian Family Law: Contracts, Credit, and Creole Chinese Bilateral Kinship in Dutch Colonial Java (1850s–1900)” documents the extraordinary economic power enjoyed by creole Chinese women in nineteenth-century Java. These women possessed inheritance rights and directed their household economies, often retaining substantial wealth independent from husbands’ debts or other family liabilities. Beginning in the 1860s, though, Dutch officials began to administer Chinese family law in the colonial courts, and they did so relying on abstract ideals of Confucianist ethics grounded in Sinological studies and formalist textual interpretations. Confucianist legal doctrines of the male as natural head of the household began to inform Dutch legal norms. As a result, by the 1880s women’s autonomous wealth was made vulnerable to husbands’ debt and obligations. Seng shows that Dutch Confucianism, installed in the name of Chinese “tradition,” deprived creole Chinese women of legal rights that they had long enjoyed in actual tradition and practice.

Follow the rest of the conversation here.

Margolies & McClure on Transnational Frontiers

Edited by Jaime Moreno Tejada (Chulalongkorn University, Thailand) and Bradley Tatar (UNIST, South Korea), Transnational Frontiers of Asia and Latin America since 1800 (Routledge, 2017) includes two articles of legal historical interest.

The first is by Daniel S. Margolies, Virginia Wesleyan College: "Spatiality, jurisdiction, and sovereignty in early Latin American approaches to the Law of the Sea," 85-97. An excerpt:

Jurisdictional claims over oceanic spaces in the immediate postwar period deserve close attention, since the oceanic spaces proximate to sovereign coastlines were a central focus of global competition for control of seabed resources and the ability to construct and regulate the overall jurisdictional order of the post-World War II world system. Latin American nations were at the center of this moment of political-economic competition and legal innovation, particularly Mexico, Argentina, Chile, and Peru. These nations individually and forcefully pursued expansive sovereignty and jurisdictional claims on the offshore continental shelf....The purpose of this chapter is to explore the contingent involvement of...Latin American states in this project of reconceptualizing and restructuring global ocean spaces as new varieties of sovereign and jurisdictional space, or what can be conceptualized as new or freshly expanded state space. 

The second article is by Alastair McClure, McGill University: "State building and problematic geopolitical spaces in South Asia: The Himalayas and the extradition treaty of 1855," 98-110. A passage from the opening:

In the midst of...state building drives of the nineteenth century, the Himalayan border between colonial India and Nepal...remained a relatively unmanageable terrain...[As] ruling powers began to take steps towards modern statehood, the protection of trade, control of movement, and concerns surrounding rebellious networks became increasingly important issues. Once it was clear that neat lines of sovereignty could not be drawn across the Himalayan border, the region became a site of power play between these emerging neighboring states and the individuals that transgressed the thresholds. These issues of security and power consistently spilled over ill-defined boundaries as criminals and men of "bad character" resided in or traveled through this borderland to escape punishment....Piecing together information from the correspondence between the Resident of Nepal and the British Government of India, this chapter seeks to offer insight into the "specific cultures of governance" possessed by these states...The chapter will seek to outline how the priorities of Nepal and colonial India converged and clashed through attempts to pacify this region, particularly in relation to the formation of laws of extradition and the policing and maintenance of their borders.

Further information on the book is available here and on Google Books here. 

Shammas and Mancall on the Sea

An edited volume by Peter C. Mancall and Carole Shammas (both of the University of Southern California), Governing the Sea in the Early Modern Era:Essays in Honor of Robert C. Ritchie (Huntington Library) came out last year. From the publisher:

Early modern European governments clashed over laws governing the sea—an environment that featured watery borders, rampant piracy, the threat of free trade, and the large-scale transportation of human cargo. The essays in this volume explore how the exploitation of the oceans changed the institution of slavery, long-distance trade, property crime, the environment, literature, and memory, from medieval times to the nineteenth century.

The Table of Contents is available here, and here is further information about the book.