Law & Society Dissertation Prize to Fei

At the recent meeting of the Law and Society Association, the winner of the annual Dissertation Prize was announced. The award went to Du Fei (University of Oklahoma), for a dissertation titled "Local Women, Global Histories? Gendering Economic Life, Law, and Islam in Early Modern Transregional India." The citation:

Du Fei, Assistant Professor at the University of Oklahoma, who earned his PhD from Cornell University, has been selected as the winner of this year’s Dissertation Prize. His dissertation, “Local Women, Global Histories? Gendering Economic Life, Law, and Islam in Early Modern Transregional India,” challenges gendered constructions of Islamic law and reveals how gender-insensitive narratives have shaped dominant histories of trade and travel in global Islam. 

Historians have long traced the movements of merchants, colonizers, and legal professionals across transregional India, often casting men as global actors and non-European women as local, domestic subjects. But what was it precisely that made some of these histories “global” and others “local”? What roles did women actually play in the economic life of the time, and how did they engage with legal systems, while navigating financial and social networks? Drawing on extraordinarily rich archival research and sharp theoretical analysis, Fei’s dissertation uncovers a fascinating inversion of mainstream assumptions about the histories of gender in Islam. 

While Muslim women in transregional India are often portrayed as passive or economically marginalized, Fei shows that some acted as strategic negotiators—engaging with jurists, judges, and male kin to assert claims through Islamic law on property and inheritance. Rather than being confined to the private sphere, these women regularly negotiated with male kin, jurists, judges, and officials in multiple courts. Taking readers across the lands and seas of South Asia, the Middle East, and Southeast Asia, Fei effectively constructs a new archive for the legal history of South Asia, drawing on sources in Persian, Arabic, English, and Dutch.  

By positioning the household as a critical site of economic activity, the dissertation also unsettles simplistic accounts of patriarchy and offers a major methodological and substantive contribution to the economic and legal history of global early modernity. It advances scholarship on legal pluralism by demonstrating how women navigated overlapping legal traditions as they engaged in debates among Muslim jurists, colonial officials, and Orientalists. In short, Fei’s dissertation represents the epitome of law and society scholarship. 

The committee unanimously praised the exceptional reach of the dissertation, spanning gender studies, legal history, and Islamic studies, and its potential to mark a leap forward in socio-legal scholarship that employs historical analysis. Beautifully written and meticulously researched, the dissertation lays the groundwork for an important interdisciplinary intervention. In a period marked by opportunistic originalism, it offers socio-legal scholars a compelling example of how careful archival rereading can serve as a powerful counterpoint in legal argumentation about global histories. 

Congratulations to Professor Fei!

Moffitt on the Cayuse Five and Formal Responses to Historical Injustices

Michael L. Moffitt (University of Oregon School of Law) has posted "Truth. Regardless of Reconciliation?" The abstract:

Formal responses to historical injustices have typically taken one of two fundamental forms in the past hundred years. The first form is familiar to legal systems—a retributive process in which an adjudicative body measures the conduct of alleged wrongdoers against some set of established standards (think Nuremberg Trials). The second form is often labeled “alternative,” particularly in Western legal systems, despite its long history and increasing prevalence within the past few generations. It focuses on broad inclusion, shared responsibility for the outcomes, and a forward-looking perspective on the next steps beyond or in lieu of traditional criminal sanctions (think South Africa’s Truth and Reconciliation Commissions). Some cases of historical injustice on larger timescales, however, do not lend themselves neatly to either of these basic models. Sometimes, clarifying foundational factual matters is essential, but testimony by people with first-hand knowledge of the incidents in question is impossible. What then? This Article takes up the case of the 1850 wrongful execution of five Cayuse Indians, men who became known as the Cayuse Five. The Five had been convicted of murdering Dr. Marcus Whitman in 1847, in what would eventually become the Oregon Territory. Their conviction came despite considerable evidence that some or all had no direct involvement, after a deeply problematic trial. Where the Five were buried is unknown, and that fact stands in the way of repatriation. The ongoing search for their burial location sits astride the prospect of a non-adjudicative process aimed at reconciliation, justice, healing, or whatever the living may deem the best course of action. The Article provides background on the undertold history of the Cayuse and white settlers in the mid-nineteenth century and then notes the ongoing significance of the fact that the burial locations of the Cayuse Five remain unknown. The Article then argues that although this work is not focused on resolution, it nonetheless belongs under the broad umbrella of dispute resolution, peacemaking, and conflict resolution. The Tribe’s ongoing search (as well as the assistance others are providing to them) is best understood through the lenses of ethics and practice within dispute resolution—even though the search does not share the familiar trappings of classic reconciliation or restorative processes. 

The full paper is available here.

-- Karen Tani

Allen on Hand on Moral Turpitude in Immigration

It's gated, but interesting: Jak Allen has published What Is a “Moral” Citizen? Learned Hand and the Judicial Role for Defining Immigrant Morality Tests, 1929–61, in American Political Thought 13:1 (Winter 2024):

Learned Hand (LC)

“Good moral character” and acts of “moral turpitude” remain significant US standards for citizenship hopefuls and potential deportees. However, there is little scholarship examining whether morality standards have been used as effective exclusionary tools in the history of US immigration law. This article addresses this incomplete picture by raising topical questions about democratic process in lawmaking and prompting historical reassessment of moral expectations as barriers to immigration. It highlights the leading role of federal appellate judge Learned Hand in exposing the interpretive challenges that moral-based standards presented to courts in the early to mid-twentieth century. The article argues that Hand attempted to reduce the discretionary scope of judges by relying on society’s “common conscience” to decide legal disputes in this deeply subjective field of law. However, in applying this more layered, context-specific view of moral standard, Hand also exposed flaws in his own philosophical adherence to judicial restraint.

--Dan Ernst

Dillon's "First Chief Justice"

Mark C. Dillon, a Justice of the Appellate Division of the New York State Supreme Court, has published The First Chief Justice: John Jay and the Struggle of a New Nation (SUNY Press):

The first Chief Justice of the United States, John Jay faced many unique challenges. When the stability and success of the new nation were far from certain, a body of federalized American law had to be created from scratch. In The First Chief Justice, New York State Appellate Judge Mark C. Dillon uncovers, for the first time, how Jay's personal, educational, and professional experiences—before, during, and after the Revolutionary War—shaped both the establishment of the first system of federal courts from 1789 to 1795 and Jay's approach to deciding the earliest cases heard by the Supreme Court. Dillon takes us on a fascinating journey of a task accomplished by constant travel on horseback to the nation's far reaches, with Jay adeptly handling the Washington administration, Congress, lawyers, politicians, and judicial colleagues. The book includes the history of each of the nine cases decided by Jay when he was Chief Justice, many of which have proven with time to have enduring historical significance. The First Chief Justice will appeal to anyone interested in the establishment of the US federal court system and early American history.

A review is here.

--Dan Ernst

Ohnesorge on Regulating the Chinese Legal Profession

John K.M. Ohnesorge, University of Wisconsin Law School, has posted Regulation of the Legal Profession in China: An Historical Overview, which is forthcoming in China Law & Society Review:

This essay begins with an exploration of the role of law and “proto lawyers” in imperial China, followed by a survey of the legal profession and its regulation in Republican China before 1949 (Section II). Section III addresses lawyer regulation during the high tide of Soviet and the Maoist influence (III.A.), and in the post-1978 reform period (III.B. and III.C.), including the regulation of foreign lawyers and law firms in the China market. Section III.D. turns to developments since Xi Jinping took power in 2012, and Section IV offers concluding observations.

--Dan Ernst

Webb on James Wilson, Synthesizer

Derek Webb, a fellow at Yale Law School, has posted The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson, which is forthcoming in the British Journal of American Legal Studies:

James Wilson, LL.D. (NYPL)

This article argues that the key to understanding James Wilson, one of the leading architects of the Constitution and the first Supreme Court Justice to be sworn in, and yet arguably the most neglected and misunderstood figure from the founding generation, is as a "great synthesizer" of seemingly disparate philosophical and constitutional commitments. Drawing upon the natural rights tradition of early classical liberalism as envisioned by John Locke, Wilson insisted that the new federal government be as democratic and broadly reflective of "We the People" as possible. Drawing upon the law of nations tradition as articulated particularly by Cicero, he became one of the nation's leading proponents of a strong, centralized federal government in order to form "a more perfect union." And inspired by the concept of the moral sense and the innate sociality of the human person as discussed in the Scottish Enlightenment by Thomas Reid and Francis Hutchinson, he made clear that the "blessings of liberty" were contingent upon an active and engaged citizenry on the national level. By understanding this overlooked, synthetic quality of Wilson's thought, we may better understand, in all its richness and complexity, the unique role Wilson played in America's creation story, gain a new perspective on the original Constitution itself, its achievements and its flaws, and reconstruct a compelling constitutional theory that cut across the political alignment of the day but perhaps better anticipated subsequent constitutional development than any of the prevailing positions in 1787. 

--Dan Ernst

CSCHS Review (Spring/Summer 2023)

The Spring/Summer '23 issue of the California Supreme Court Historical Society's Review is now available here. Dr. Molly Selvin, the editor, writes:

Our lead story tackles the ongoing debate over historical figures long venerated by law schools, universities, monuments and other public memorials. San Francisco attorney and historian John Briscoe takes off from the recent “denaming” of UC Hastings College of the Law (now UC College of the Law, San Francisco) with a careful examination of the role California’s first chief justice and later attorney general, Serranus Hastings, played in the massacres of the state’s native population between 1834 and 1880. John also broadens his scope to address naming controversies at other universities and law schools. In so doing, he explores how various universities and professional organizations have struggled to weigh tradition with Americans’ changing understanding of our past.

Next, CSCHS board member John Caragozian explores the prosecution of 19-year old Yetta Stromberg, a counselor at a “red” summer camp. In 1929, during the so-called First Red Scare, the Southern California teenager was charged with raising a homemade hammer-and-sickle flag each morning, leading the children in pledging allegiance to it, and singing “Communist songs.” Stromberg was convicted of violating a California Penal Code section barring activities in opposition to “organized government.” Although the U.S. Supreme Court ultimately reversed her conviction, explicitly holding that the First Amendment’s free speech protections were enforceable against states and that “visual symbols like the red flag” qualified as speech, Stromberg’s case can be seen as a prelude to the Communist persecutions of the 1940s and ’50s. 

For the complete TOC scroll down to the end of the pdf linked to above.  Dr. Selvin adds, "We welcome comments from your readers — as well as their article ideas.”  Write her at molly.selvin@gmail.com.

--Dan Ernst

Andrias on Labor's Antimonopoly Vision

Kate Andrias, Columbia Law School, has posted Beyond the Labor Exemption: Labor's Antimonopoly Vision and the Fight for Greater Democracy, which is forthcoming in Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak (Oxford University Press):

Although the labor movement and the antimonopoly movement both oppose concentrated economic power and bemoan rising inequality, their projects are frequently viewed as divergent, if not incompatible. After all, courts have long used antitrust law against workers’ collective activity, and antimonopoly advocates have tended to deemphasize problems of class, focusing on breaking up business in ways that do not necessarily provide workers more power. This Essay shows, however, that the industrial unions of the early and mid-twentieth century saw themselves as antimonopoly advocates. They sought not only to free workers’ collective activity from antitrust law’s sanction, but also to advance an affirmative antimonopoly agenda. Yet their agenda was different in important respects from that of prominent antimonopolists, including Louis Brandeis: Labor’s focus was not on making business smaller, but rather on building workers’ countervailing power and increasing democratic control over the workplace and the economy, through a range of strategies including industrial organizing; changes to antitrust, tax, and banking policy; new forms of national economic planning; and public control of key industries. By examining labor’s antimonopoly vision beyond the struggle for a labor exemption, this Essay draws a more complicated picture of the American antimonopoly tradition—one that challenges the dominant narrative about the relationship between labor and antitrust and enriches our understanding of what the Progressive and New Deal-era antimonopoly vision entailed. It also suggests that, to unite the interests of workers, consumers, and citizens, the primary focus of a reform agenda going forward ought not be the size or even the market power of the firms in question, although those are certainly important factors, but rather the degree to which firms’ autonomy and power are democratically constrained either by the public or by the firms’ workers—in short, a program for greater democracy.

--Dan Ernst

The Work-Life Balance & Other Myths

         It took far longer to get my first book to publication than I ever thought it would. It began as my dissertation, completed in 2005. The next year I began a tenure-track position at a small liberal arts college with a 3:3 teaching load and fairly heavy service and advising expectations. The year after that, my oldest child was diagnosed with both a disability and a chronic illness.

    His conditions entailed regular visits to medical specialists and therapists, some up to two hundred miles away; when at home, he required direct supervision at all times. When time allowed, I worked on the major revisions the manuscript required. Extended or multiple visits to archives were simply not a possibility, as he needed specialized care and could not be left. I would have to make the most of the material I had (and fortunately, I had quite a bit). I lost one entire summer to recovery from emergency surgery.

    Finally, after six years, I had a fully revised draft ready to submit to a press who had expressed interest. They sent it to readers, who returned thorough reviews which, while supportive, recommended substantive revisions. These were entirely fair, and I probably could have completed them in a year, under normal circumstances. However, my son's illness had just progressed from chronic to acute, and I decided I needed to focus all my energies on helping him.

    That situation was so overwhelming for the next few years that I had no thoughts or energy to spare for the manuscript. I didn't even look at it, in fact. But as my son slowly started to recover, I began to think about giving it another try. I got back in touch with the press, and we agreed that it probably wouldn't work to proceed with them anymore. Nonetheless, I tackled revisions in a serious way and began thinking about where else a good fit for the manuscript might be. And thanks to an editor, readers, indexer, copyeditor, and countless others willing to work through the exigencies of pandemic publishing, the book is now in print. More importantly, my son is doing well.

    I share my story not for sympathy or because I think it's unique--but because I recognize that these sorts of experiences are becoming all too common in the age of Covid and Long Covid. So many academics, especially caregivers, are seeing their work goals recede into the distance as they try to be the safety net that our society and institutions fails to provide.

    Many, particularly contingent and untenured faculty, are feeling anxious about how their caregiving responsibilities have affected, and continue to affect, their scholarly productivity. And they don't feel they can acknowledge their situation--I certainly have not, before now. I would like to normalize talking about some of the challenges we are facing. I'd also like to encourage those of us with tenure to be more creative in thinking about how to extend greater flexibility and support to our colleagues.

N.B.: I've attached labels to this post such as "Publishing advice" and "Research tips," which are quite misleading. Nothing here should be construed as advice or tips, as I do not recommend this path if you can at all avoid it. But I did want to assure anyone else who might be sharing a common experience that you are not alone.

--Kristin A. Olbertson

Cornell on Arms Regulation, 1328-1928

The June 2022 issue of the UC Davis Law Review includes the symposium, The 2nd Amendment at the Supreme Court: “700 Years of History” and the Modern Effects of Guns in Public.  Contributions include The Long Arc of Arms Regulation in Public: From Surety to Permitting, 1328–1928, by Saul Cornell, Fordham University:

This Article charts the six-century arc of arms regulation in public in the Anglo-American legal tradition. It summarizes existing historical scholarship, exposes historical flaws in gun rights activist writing pretending to be engaged in serious scholarly inquiry, including the dubious claims advanced in the many gun rights amicus briefs filed in Bruen, and presents new research crucial to understanding the history of gun regulation and enforcement.

--Dan Ernst

Ford Cole on Race and International Investment law

New over at the University of Chicago Law Review Online: Race and the History of International Investment Law, by Felipe Ford Cole, Sharswood Fellow at the University of Pennsylvania Carey Law School:

Over the last decade, new contributions to the history of international investment law (IIL) have begun to redefine the field’s origins. Where a progressive narrative of steadily improving legal responses to the travails of moving and protecting investments around the world once stood, a more sober story of the continuities of gunboat diplomacy, resort to force, and asymmetries of power is emerging. The scholars behind the new histories of IIL, drawing on earlier critiques of similarly Whiggish narratives in international law, aim to establish a new, more nuanced relation between IIL and its history. Many challenges lie ahead in the venture into the massive tangle of previously underexplored historical events, sources, and theories. No challenge will prove as fraught as reconciling the contemporary normative ends of IIL with those behind its emergence in the late nineteenth century and early twentieth century. For most IIL scholars and practitioners today, the normative goal of IIL is the peaceful expansion of investment for the benefit of societies and investors alike. For the jurists and diplomats that shaped the core IIL doctrines in the nineteenth and early twentieth centuries, however, the goal was securing the property of investors from “civilized” races in a world of “uncivilized” races. These incongruent ends are hardly unusual for a modern body of law, but in the case of IIL, the full influence of theories of racial hierarchy is not entirely understood.

–Dan Ernst

Bassok on Constitutional Thought and the Havard Law Review Forewords

Or Bassok, University of Nottingham Faculty of Law and Social Sciences, has posted Beyond the Horizons of the Harvard Forewords, which is forthcoming in volume 70 of the Cleveland State Law Review (2021):

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it stands in tension with an understanding of judicial legitimacy in terms of expertise that goes back to Alexander Hamilton and dominated the Forewords up until the 1960s. Rather than viewing the Supreme Court as requiring public support to function properly, according to the Hamiltonian view, the Court requires “merely judgment.” Tracking the genealogy of judicial legitimacy in the Harvard Forewords also shows how the shift from Hamilton’s understanding of judicial legitimacy to the current understanding was connected to the invention of public opinion polling. This invention allowed for the first time in history to measure public support for the Court. Before this invention, with only elections as the accepted tool for measuring public support, understanding the Court’s legitimacy in terms of public support was impossible. With the rise of opinion polls as an authoritative democratic legitimator, the concept of judicial legitimacy changed as is reflected in the Harvard Forewords.

That “tribal campfire” metaphor is pretty terrific, especially when you remember that someone was always getting roasted.  

–Dan Ernst

Peer Review: A Casualty of the Pandemic?

I confess: even in the best of times, my first impulse upon spotting an email from a journal or book publisher or tenure and promotion committee that I just know is a request for peer review has not been to rejoice at yet another chance to serve and sustain the Republic of Scholars.  Now, with so many other unexpected demands on our time–personal as well as professional–how could we not be expected to reply “Sorry; just can’t,” hit send, and return to whatever mishegas had been enveloping us?

When the latest request arrived, I clicked “yes,” then paused to wonder why I did.  My first thought was simply that I could: with my children employed and out of the house and my family members healthy, the pandemic has disrupted my personal far less than many, many other legal historians; it was time for the fortunately situated to step up. 

A second thought was more self-ish.  The pandemic disrupted many of the behaviors through which I realize and affirm aspects my professional identity.  So much of my sense of myself as a teacher, for example, is borne of spontaneous interactions in the classroom; with the start of remote teaching, I wasn’t quite sure I was who I always thought I was until my students, eager to affirm their own emerging identity as professionals, reassured me with their enthusiastic engagement.  I’m not sure which of us was more grateful for the experience.

Peer review is an opportunity to affirm another part of a professor’s professional identity, that of a contributor to a scholarly discipline.  I know what you’re thinking, and it’s not wrong: “I can do that by producing my own scholarship, an activity that’s gotten a lot harder recently, in case you haven’t noticed.”

Well, of course you can, and it has.  And yet we all know that, however solitary it sometimes feels, scholarship is a collective activity, which we advance no more vitally than when we explain what a particular manuscript or body of work contributes to the whole.  Peer review, then, is a way to affirm the collaborative side of one's scholarly identity

A third thought used to strike me as alarmist, but, with so many stopping their ears to the warnings of epidemiologists, it now seems undeniable: credentialed knowledge is, if not quite an endangered species, under stress in an increasingly hostile epistemological habitat.  Such authority as it retains would collapse without collective, expert assessment.  Call it the Tinkerbell effect if you must, but a demonstrated belief in the value of peer review anywhere can help sustain it everywhere.

So when the next request arrives, if you just can't, don't.  But, if it's a close question, before declining consider what we would lose if peer review became a casualty of the pandemic.  

--Dan Ernst

A Better Book: Development Editors

              Today’s post concerns the secret weapon of many an excellent (legal history) author, the development editor. I worked with two on my book, Almost Citizens. They were crucial to my learning curve. Without them, I would never have crafted a book that resembled the vision in my head.

              Before starting my book, I had never contemplated paying someone to help me improve my writing. Legal history is a specialized area, and I chose my words carefully to hew to what the sources supported. I worried that someone from outside the field would seek to simplify or expand my claims in ways that I would just end up reversing. The problem was that I also knew that I could benefit from fresh eyes on my writing. By the time I’d drafted a few chapters and signed with Cambridge University Press, I felt confident about my narrative structure and cast of characters. But I found it more difficult to do smaller-scale reorganizations and line edits. This was partly because I was so close to the manuscript. It was also because writing is a skill, and I had more to learn.

Despite having many generous readers, none seemed likely candidates to become writing mentors. Colleagues and reviewers grappled with my work and provided incisive comments. But that feedback almost always involved the substance of the argument rather than its tone and constituent sentences. Given the economic realities of book publishing, many publishers hardly do any editing of manuscripts in progress. I did have the good fortune to publish with American Society for Legal History’s book series (which I discuss here). Sally Gordon was my editor there, and she was a tireless and skilled reader. But she soon saw that the book and I could both gain from more editorial engagement than she could devote to a single book in her series. So she recommended that I consider a development editor.

              I had never heard the term. Perhaps because I live just down the road from Hollywood, my mind immediately went to the entertainment executives who tell show runners that their sitcoms need more dogs or a kooky sister to really draw in the millennials. But (spoiler alert!) that was not whom I was to encounter. The editors I would work with helped me produce the best possible version of my book. Sometimes, such work is called development editing. Sometimes it goes by different names.

              I sought someone who could help me make my prose sing (or at least hum occasionally) without sacrificing nuance and accuracy. Given my topic, that meant an editor who could engage legal and historical arguments, had a sense of the evidentiary norms in the field, and understood the potential audiences for the work. But finding such an editor is a bit like turning up a good contractor for a renovation; you ask around, check out samples of the person’s work, and ultimately take a leap of faith that the (intellectual) place that you lay your head will be transformed for the better.

              I had the good fortune to work with two excellent development editors. I learned of both through admired colleagues who sang the praises of having collaborated with them. The first was Grey Osterud, an accomplished academic historian. Rather than teach, she complements her research with editing colleagues’ work. I was thus confident from the outset that she knew and honored the standards of academic history. Once I had the manuscript drafted, I undertook a rewrite with Pamela Haag, an author of serious histories for broader audiences. Notably, she also has a contract with Yale University Press for a style guide for the scholar-writer that I look forward to adding to my shelf soon.

              As Grey and Pamela helped me improve the book’s prose, they were also teaching me to be a better writer. One set of lessons had to do with the difficulties of evaluating choices about organization when one is too close to the text. Because I was circulating individual chapters to colleagues for feedback, I tried to put enough at the front of each chapter to orient them. The result was bloated chapter introductions. My development editors saw the problem immediately. They worked with me to shorten the chapter introductions and have them serve more as bridges between chapters than as introductions to standalone essays. Similarly, my immersion in the particularities of the book’s events had led me to subdivide the book’s chronology into overly narrow chronological bands. As Grey and Pamela perceived, such fine distinctions muddied the broader argument rather than clarifying it. Thus, a chapter that I had written with six sections, one for each of three characters at each of two times (ABCABC), came to contain just three character-centered sections (ABC).

              Careful editing by others is a wonderful way to discover one’s own writing tics. I had been particularly blind to two. I wrote long, intricate sentences and was overly fond of metaphors. I had to learn to reduce clauses and interjections, break up sentences, and clarify which verbs and nouns went together in what ways. Similarly, I had to unmix metaphors and close them out before they ceased to clarify. The difficulty in both cases was less fixing the problems than perceiving them in the first place. Grey and Pamela sensitized me to my propensity to create these tangles, which was all I needed to start fixing them.

              Like many historians, I revel in the details and complexity of what I study. Seeing the danger, my dissertation committee co-chair Jesse Hoffnung-Garskof counseled that my job was to over-claim and that his job was to rein me in. But knowing that I should trim and sum up did not wholly cure me. My development editors urged me to go further. Curate evidence. Don’t cut one of five quotations; leave just one. Remove tangents. Lead with bold claims. Qualify them later. Or don’t. The result was much more accessible prose. Arguments rose to the surface, no longer drowned by my sea of evidence.

There is one big downside to a development editor: she costs money. How much varies by who you hire, for how long, and for what. But price tags in the thousands of dollars would be common. The best solution is to have someone else pay. My law school (USC’s Gould School of Law) is extremely generous in its support for junior scholars’ work. While schools and departments may vary substantially in what they are able to offer, it is always worth asking. Knowing that peer institutions have offered similar funding can sometimes help shake out extra funds.

Had I had to pay for my development editors entirely out of pocket, I might have balked at using them or using them so extensively. In my case, that would have been a mistake. Their services were worth far more than the cost. As an early-stage scholar, the benefits were quite large. I have many productive years left in which to benefit from what I have learned in terms of writing and argumentation. The book is stronger too. That matters because the book is my debut in legal history as a mature scholar. It was also the centerpiece of my file for tenure (which I just received--Yay!).

My biggest fear when I began working with development editors was that I would not recognize the final text of the book as my own prose. In fact, the opposite was true. By the time I began working with Grey, I largely knew what I wanted to argue, which historical actors and narratives I wanted to feature, and what evidence I wanted to rely upon. But I found it frustratingly hard to translate the book that I had in my head into words on the page. As Grey and then Pamela and I worked on the prose, the gap between it and my envisioned book narrowed considerably (albeit with some nice additions suggested by my development editors that I had not foreseen). Almost Citizens ended up being very much my book—even more so than I had at first hoped.

--Sam Erman

On Scholarship and Productivity – a Farewell to the Legal History Blog and a Confession

Back in June 2018, when Mitra Sharafi invited me to be a guest blogger for a month, she mentioned, among other things, that she would love a post with tips on research productivity. I did not want to end this blogging experience without complying with her wish.  

Twenty-five years after I defended my dissertation and with some twenty-or-less years before I retire, what have I learned about research and writing? 

The first thing is that, although intuitively we tend to think that focusing on smaller things and a shorter time span would enable a greater efficiency, this is usually untrue. In my own experience, the larger and wider you look, the quicker you understand what you see. This was a lesson my driving teacher taught me when I was sixteen years old. She explained that if I looked right in front of the wheels (which was what I naturally wanted to do) I would see nothing; but that if I looked to the horizon I would see everything. I am sure she did not mean to give me a life-long advice, but her wisdom guides me (also) as I imagine, plan, or execute, new projects. 

Looking to the horizon requires, among other things, to ignore the most obvious and the most travelled route. I know Robert Frost warned us that the routes we take may not make as huge a difference as we would like to believe, but not being certain where I was going paradoxically allowed me to better listen to the archives. I listened not to what they told me about the past, but also to what they said about my research question. Was it a valid question? Should it be asked differently? How can it be divided into pieces and what should be included? At least twice the archives told me to abandon the search altogether or they suggested that the project I was pursing was of little interest. It was a hard lesson to learn, but I ended up obeying. 

Knowing when to stop was a fundamental issue. Many years ago, as an MA student, my then mentor gave me the advice that when nothing surprises me any longer, it is time to leave. I follow his recommendation religiously, even as I tremble at the thought that an amazing discovery may be waiting for me in the next bunch of papers, which I will never read. 

Efficiency at the archives is one thing; another is to overcome the first blank page of a new project. There are days in which I can write, and days that are useless. I try to come to terms with these fluctuations, knowing that there is little I can do to change them. When I get really stuck I go swimming. Swimming allows me a concentration, which I cannot otherwise obtain. 

Over the years, I learned to avoid peer review. I realize this may be an unnecessary confession, but there is nothing that I like or find useful about peer review. Peer reviewers sometimes know more than you, or as much as you do, but often they do not. Some are generous and engage with your argument, but others want to impose their ideas. I know peer review is supposed to ensure a certain quality across the board and maybe sometimes it does, but in my own experience it mostly produces leveling.  While it guarantees serious and responsible scholarship, it disrupts attempts at doing things differently. Perhaps because I was educated in Paris, as I matured in the American academic system I kept asking myself whether revered French academics such as Foucault, Derrida, or Braudel, would have ever passed a proper peer review. I am convinced they would not. Nonetheless, our scholarly world is better because of what they proposed. Their insights were transformative even if their method was too new, their facts too shaky, and their tendency to generalize too extreme. 

I also believe it is important to remember that there are many ways to think about productivity. The most obvious is to measure it by the number of books and articles. Another is by evaluating the divergence between them, and the degree by which they respond to different questions, methodologies, areas, or subjects of expertise. What kinds of linguistic and archival competence is required is another important point, as well as whether sources are available online or demand dislocation, where to, and how user-friendly are the deposits. 

Beyond all these considerations, the greatest lesson I learned is that, although we tend to think about productivity as a personal achievement, in earnest, it often depends on the individuals and institutions around us. Teaching in universities with excellent students, interesting colleagues, great libraries, and comfortable office space, facilitates things tremendously. So does having many sabbaticals, preferably, many more than the term usually implies. A supportive domestic and social environment is crucial. We often give thanks to our families and friends because of what they had endured while we did research and writing. I am thankful to them on this account, but I am mostly grateful for the conversations they facilitated. I found dialogues with my twin boys surprisingly illuminating. When they were younger, I needed to explain things simply; when older, my aim was to make them more complex. But, as I dragged them across countries and continents, I learned a new art of explaining and discovered new ways to think about what I believed I already knew. 

There is a famous saying that behind every successful man there is a great woman. Fortunately, I belong to a generation that can also affirm the contrary. I am certainly privileged to be backed by a great man. It is to him, that great man who listens, shares, discusses, assists, reads, and advises, that I dedicate this last piece.

Campbell on Natural Rights and the First Amendment

Jud Campbell, University of Richmond School of Law, has posted Natural Rights and the First Amendment, which is forthcoming in the Yale Law Journal.

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding-Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding-Era elites shared understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Muller on Voter Registration Battles, Then and Now

Derek T. Muller, Pepperdine University School of Law, has published What’s Old Is New Again: The Nineteenth Century Voter Registration Debates and Lessons About Voter Identification Disputes, Washburn Law Journal 56 (2017): 109-121.  Cribbing from the introduction:

There is a raging debate over the administration of elections, which is undoubtedly familiar to many. There has been a significant increase in a particular kind of election law pertaining to how states go about administering elections. These laws have largely been promulgated by Republicans and target election fraud—actual or perceived—in an attempt to restore some integrity to the electoral process. Democrats, for the most part, have opposed these laws and often critiqued them as a kind of voter suppression tactic, one that disproportionately burdens racial minorities, the poor, and those who have recently moved into a precinct. Over the years, these positions have hardened into fairly partisan and seemingly intractable positions.

This story, of course, is also the story of the voter registration debates in late nineteenth century America.

Chetail on Sovereignty and Migration from Vitoria to Vattel

Vincent Chetail, Graduate Institute of International and Development Studies, has posted Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel, which appears in the European Journal of International Law 27 (2016): 901–922:

This intellectual history of hospitality from Vitoria to Vattel provides an alternative story to the prevailing narrative of migration control. Although migration control is frequently heralded as falling within the domestic jurisdiction of states, the movement of persons across borders is a permanent feature of history that has been framed by international law for ages. The early doctrine of the law of nations reminds us that migration was at the heart of the first reflections about international law through the enduring dialectic between sovereignty and hospitality. This long-standing debate was framed by early scholars following three main trends, which constitute the focus of this article. The free movement of persons was first acknowledged by Vitoria and Grotius as a rule of international law through the right of communication between peoples. By contrast, Pufendorf and Wolff insisted on the state’s discretion to refuse admission of aliens as a consequence of its territorial sovereignty. Yet, in-between these two different poles – sovereignty versus hospitality – Vattel counterbalanced the sovereign power of the state by a right of entry based on necessity. As exemplified by the founding fathers of international law, the dialectic between sovereignty and hospitality offers innovative ways for rethinking migration.

Danner on Langdell and the Labratory Metaphor

Richard A. Danner, Duke University School of Law, has posted Law Libraries and Laboratories: The Legacies of Langdell and His Metaphor, which is forthcoming in the Law Library Journal 107 (2015):

Langdell Hall (LC)

Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

New Release: Empire by Treaty

Out recently from the Oxford University Press is Empire by Treaty: Negotiating European Expansion, 1600-1900, edited by Saliha Belmessous, senior research fellow at the University of New South Wales.

Most histories of European appropriation of indigenous territories have, until recently, focused on conquest and occupation, while relatively little attention has been paid to the history of treaty-making. Yet treaties were also a means of extending empire. To grasp the extent of European legal engagement with indigenous peoples, Empire by Treaty: Negotiating European Expansion, 1600-1900 looks at the history of treaty-making in European empires (Dutch, Spanish, Portuguese, French and British) from the early 17th to the late 19th century, that is, during both stages of European imperialism. While scholars have often dismissed treaties assuming that they would have been fraudulent or unequal, this book argues that there was more to the practice of treaty-making than mere commercial and political opportunism. Indeed, treaty-making was also promoted by Europeans as a more legitimate means of appropriating indigenous sovereignties and acquiring land than were conquest or occupation, and therefore as a way to reconcile expansion with moral and juridical legitimacy. As for indigenous peoples, they engaged in treaty-making as a way to further their interests even if, on the whole, they gained far less than the Europeans from those agreements and often less than they bargained for. The vexed history of treaty-making presents particular challenges for the great expectations placed in treaties for the resolution of conflicts over indigenous rights in post-colonial societies. These hopes are held by both indigenous peoples and representatives of the post-colonial state and yet, both must come to terms with the complex and troubled history of treaty-making over 400 years of empire. Empire by Treaty looks at treaty-making in Dutch Colonial Expansion, Spanish-Portuguese border in the Americas, Aboriginal Land in Canada, French Colonial West Africa, and British India.

TOC after the jump.