Shugerman on the Imaginary Unitary Executive and the Decisions of 1789

Jed Handelsman Shugerman, Fordham Law School, has posted "The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive," it two installments, Part 1 and Part 2.  Here is the abstract:

James Madison (LC)

Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:

1. The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. The switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity…
2. …and a Senator’s diary indicates the Senate sponsors, to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A cryptic comment by a presidential House member hinted at this strategy.
3. Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.”
4. A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy.
5. Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate.
6. Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years.
7. These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.

--Dan Ernst

Blickle on the Spanish Flu and German Cities

Kristian Blickle, Federal Reserve Bank of New York, has posted FRBNY Staff Report No. 921, Pandemics Change Cities: Municipal Spending and Voter Extremism in Germany, 1918-1933:

We merge several historical data sets from Germany to show that influenza mortality in 1918-1920 is correlated with societal changes, as measured by municipal spending and city-level extremist voting, in the subsequent decade. First, influenza deaths are associated with lower per capita spending, especially on services consumed by the young. Second, influenza deaths are correlated with the share of votes received by extremist parties in 1932 and 1933. Our election results are robust to controlling for city spending, demographics, war-related population changes, city-level wages, and regional unemployment, and to instrumenting influenza mortality. We conjecture that our findings may be the consequence of long-term societal changes brought about by a pandemic.

--Dan Ernst

Kelly and Burrell on British Patent Law

Catherine Kelly, University of Bristol, and Robert Burrell, University of Melbourne Law School, have posted two relatively recent articles from their backlist.  One is Myths of the Medical Methods Exclusion: Medicine and Patents in Nineteenth Century Britain, published in Legal Studies 38 (2018): 607-626:

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. 

The other is Parliamentary Rewards and the Evolution of the Patent System, which appeared in the Cambridge Law Journal 74(1915): 423-449:

This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors; a model that made public disclosure of the invention a precondition for assistance from the State. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way the reward system helped establish the framework under which the State would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the State to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way the reward system recognised the contribution of the ‘heroic inventor’, whilst leaving the core of the patent system undisturbed.

--Dan Ernst

Bernstein on Class Legislation, Fundamental Rights and Lochner

David E Bernstein, George Mason University Antonin Scalia Law School, has posted Class Legislation, Fundamental Rights, and the Origins of Lochner and Liberty of Contract, which appears in the George Mason Law Review 26 (2019): 1923-1047:

While legal scholars and historians have criticized many judicial doctrines from the pre-New Deal period, critics have been especially scathing in their attacks on the “liberty of contract” doctrine enforced most famously in Lochner v. New York. Until recently, academics routinely asserted that the Lochner Court’s Justices simply made up the doctrine based on a combination of belief in laissez-faire economics and hostility to workers’ rights.

Contemporary scholars, by contrast, have reconstructed the period’s due-process jurisprudence, finding in it a principled commitment to a conception of justice with philosophical and jurisprudential roots dating back to the Founding and beyond. There are two primary lines of this revisionist literature. One emphasizes traditional Anglo-American hostility to “class legislation” — legislation that arbitrarily favors or disfavors particular factions. The other emphasizes the influence of the natural rights tradition, tempered by precedent and historicism, on the Court’s due-process decisions. Part I of this Article reviews the debate that emerged in the 1990s and early 2000s between partisans of these interpretations.

Part II of this Article discusses subsequent developments in the class legislation vs. fundamental rights debate through the present time, noting an increasing convergence between the two sides; both sides acknowledge that both class legislation and fundamental rights played significant roles in the development of the Supreme Court’s due process jurisprudence, with the remaining debate primarily over which doctrine deserves more emphasis in historical recountings.

This Article concludes by noting that as this debate has progressed, certain areas of historical consensus have emerged. First, both sides agree that the Court did not attempt to enforce anything approaching a night watchman-type laissez-faire policy on government. Second, both sides agree that the Supreme Court’s fundamental-rights jurisprudence, often traced to the 1930s, in fact began to emerge in the pre-New Deal period. Finally, they agree that the Supreme Court Justices who adopted and applied the liberty of contract doctrine did not have the cartoonish reactionary motives attributed to them by Progressive and New Deal critics. Rather, the Justices, faced with constitutional challenges to novel assertions of government power, sincerely tried to protect liberty as they understood it, consistent with longstanding constitutional doctrines that reflected the notion that governmental authority had limits enforceable via the Due Process Clause.

--Dan Ernst

Delaney and Ponsa-Kraus on Amadeo and the Argentinian Constitution

Erin F. Delaney, Northwestern University Pritzker School of Law, and Christina D. Ponsa-Kraus, have posted Beholding Law: Amadeo on the Argentine Constitution, the introduction to Santos P. Amadeo, Argentine Constitutional Law (1943) (Academia Puertorriqueña de Jurisprudencia y Legislación), which is forthcoming online in 2020:

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system—identifying Argentina’s as the provinces, the federal capital, the national territories, and the central national government—the book mentions Argentina’s territories only in passing. The contrast is intriguing because Amadeo himself was from the U.S. territory of Puerto Rico. Why, then, as his paper grew into a book-length project, did the subject of the Argentine territories shrink to a passing mention? We don’t know the answer, but we offer our informed guess, noting the fraught relationship between comparativism and empire.

--Dan Ernst

Weinberger on Frankfurter and Abstention Doctrine

Lael Daniel Weinberger, the Berger-Howe Legal History Fellow, Harvard Law School, has posted Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures, which is forthcoming in the University of Chicago Law Review:

Felix Frankfurter (LC)

In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction.

This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes.

The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.

–Dan Ernst

Barclay on Judical Religious Exemptions

Stephanie H. Barclay, BYU Law School, has posted The Historical Origins of Judicial Religious Exemptions, which is forthcoming in the Notre Dame Law Review:

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise — a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable interpretation, one finds historical evidence of widespread judicially created exemptions that have been hiding in plain sight. Indeed, the judiciary’s ability to modify statutes to cohere with higher law principles like constitutional rights was widely accepted in the early Republic. Though the judiciary did not always use modern language of exemptions, this was functionally what judges were doing on a large scale throughout the country and across a host of personal rights. The mode of analysis courts used to create these equitable exemptions also provides an important historical antecedent for modern strict scrutiny analysis.

An understanding of wider historical judicial practices helps avoid the trend of treating free exercise judicial remedies as an island in the law, and it also provides additional support for an original understanding in favor of religious exemptions. Thus, contrary to the conventional view, this Article demonstrates that judicially created religious exemptions are well within our constitutional traditions of judicial review, and may have more historical support than the Court’s current approach.

--Dan Ernst

Barrett on that "Switch in Time" Quote

John Q. Barrett, St. John's University School of Law, has posted Attribution Time: Cal Tinney's 1937 Quip, "A Switch in Time'll Save Nine,” forthcoming in the Oklahoma Law Review:

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.

Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, 1933-1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then President Roosevelt, in early 1937, proposed to “pack”—to enlarge—the Court, so that it would become supportive of New Deal laws.

Within weeks, the Supreme Court changed course, announcing broader constitutional interpretations of federal and state government legislative powers.

The Court’s switch took the air out of the Court-packing balloon. The change was—and here is the quip that everyone knows—“the switch in time that saved nine.”

That line appeared in 1937. It was repeated by many, especially in Washington. It has been quoted ever since. Just who coined it has been debated and never established.

Until now.

--Dan Ernst

Gindis on Manne at Miami

David Gindis, University of Hertfordshire Business School, has posted Law and Economics Under the Palms: Henry Manne at the University of Miami, 1974–1980:

Henry G. Manne described himself as the only full-time missionary for law and economics from the first glimmerings of that subject. This paper deals with the period of Manne’s career when he first assumed this role, which coincides with his time at the University of Miami Law School (1974-1980). Prior to Miami, Manne had formulated a vision for law and economics, and had developed prototypical structures for funding and running interdisciplinary conferences and intensive economics courses for law professors. Manne professionalized these at Miami, using the organizational vehicle of the Law and Economics Center (LEC) that he set up and ran until his departure. Over the course of this period, Manne recruited and invested heavily in teaching, research and conference administration capacities. The LEC branched out, particularly into the policy arena, multiplying the frequency and diversity of activities pursued. It introduced innovative ways of linking economics and legal practice, economists and legal professionals, and played a pivotal role in the integration of law and economics as intellectually integrated disciplines.

--Dan Ernst

Altwicker on Extraterritoriality from Thucydides to Grotius

Tilmann Altwicker, University of Zurich, has posted Justice Beyond Borders: Extraterritorial Obligations from Thucydides to Grotius, which is forthcoming in Rechtsphilosophie - Zeitschrift für die Grundlagen des Rechts:

The article traces the problem of extraterritorial obligations in the early history of ideas, spanning from Thucydides to Grotius. Extraterritorial obligations are defined here as moral obligations of a legitimate authority to perform or not to perform an act vis-à-vis individuals who are not its subjects. The article shows that arguments about justice beyond the border rely on transnational conceptions of the common good. In the early history of ideas concerning extraterritorial obligations, the following questions were central: Can there be a transnational meaning of moral concepts? Are extraterritorial obligations merely negative obligations? Is the extraterritorial pursuit of state interests limited by higher-ranking principles? Under which circumstances is the extraterritorial use of force permitted in order to protect individuals?

--Dan Ernst

Perelman on the Bankruptcy History of the United States

Mark Perelman, whom I believe is a graduate of the Yale School of Management, has posted A Bankruptcy History of the United States:

Financial crises destroy value and radicalize the political sphere. Are these events random, idiosyncratic, or driven by some force? The ex-post answers — be they monetary, criminal, or international contagion — have a profound impact on the role of government in society, but have questionable predictive power. In the United States, only the Federal government can impair contracts across States through the bankruptcy process. The history of bankruptcy law is intertwined with that of crises and banking law, and, as we argue, is a consistent cause, accelerant, and reaction of financial crises.

--Dan Ernst

Waxman and Weitzman on the Montgomery Ward Seizure

Over at Lawfare, Matthew Waxman and Samuel Weitzman have posted a nice essay, with Francis Biddle at its center, Remembering the Montgomery Ward Seizure: FDR and War Production Powers.

Chen on the Chinese Tradition of Administrative Law

Albert H. Y. Chen, The University of Hong Kong Faculty of Law, has posted The Chinese Tradition of Administrative Law:

For most of the time during the last two millennia, China was a dynastic empire ruled by an emperor with the assistance of a highly developed mandarinate of imperial organs. “Administrative law” in the modern sense of a set of legal norms enacted by the legislature or developed by the judiciary that simultaneously empower and constrain state organs and officials for the purpose of protecting the rights and liberties of subjects or citizens did not exist in traditional China. But there did exist for more than two millenniums elaborate and sophisticated rules regulating the powers and functions of each component of the highly complex and extensive machinery of imperial organs and officials, and prescribing in detail the duties of officials as well as the multiple and complicated monitoring, supervisory and disciplinary mechanisms applicable to the exercise of powers and performance of duties by officials in different state organs.

By the late 19th century, Qing China’s increasing subordination to Western imperialism and semi-colonialism convinced significant numbers of Chinese political and scholarly elite that there was a desperate need for China to “save” and strengthen itself by pursuing modernization. In the legal and political domains, this generally meant extensive borrowing or transplant of Western political and legal institutions. After China's defeat by Japan in the Sino-Japanese War of 1894–1895, Japan’s experience of successful modernisation was widely admired by Chinese intellectuals, and the Japanese model was perceived as one that China should imitate in its self-strengthening efforts.

This essay will therefore begin with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. It will then survey the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era (1911–1949) and after the establishment of the People's Republic of China (1949-). Major developments in Chinese administrative law in both the Republican era and the Communist era will also be briefly outlined as the context of administrative law scholarship. It will be seen that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.

--Dan Ernst

Mirow on Scots Traders and Spanish Law in East Florida

M. C. Mirow, Florida International University College of Law, has posted Scots Traders and Spanish Law in East Florida, which is forthcoming in Colonial Adventures: The Making of Commercial Law and Practice, ed. Serge Dauchy, Albrecht Cordes, Dave De ruysscher & Heikki Pihlajamäki (Brill):

This chapter describes commercial litigation in 1802 threatening Panton Leslie’s trading post at Picolata, East Florida, and the firm’s very existence in the province. It explores and reveals the legal sophistication and institutional limits of local actors in a small northern outpost of the Spanish empire. The parties considered and argued about the proper interpretation of royal orders, governors’ edicts, official correspondence, and other documents that shaped the dispute. Concerning commercial legal culture, the issues debated in the pleadings centered on Panton Leslie’s compliance with its unique trade status as delineated in a series of royal orders and agreements. Despite their remoteness from imperial economic and commercial centers, the parties did not play fast and loose with the legal sources or arguments. The dispute reveals that the nature of commercial enterprise within empires was not simply one of economic benefit. Trading companies were woven into the political fabric of imperial administration. In this context, Sánchez argued that for Spain to coexists with native populations and eventually to have Indian populations join its polity, the foreign, English, trading house of Panton Leslie had to be removed as an intermediary between them. This extensive legal battle also has some explanatory benefit on the shift of Panton Leslie away from trade to debt collection and property management in the early years of the nineteenth century. William Panton died in 1801 and Bowles’s attacks against Panton Leslie had significantly disrupted its ability to trade profitably. This suit must be added to these causes of the firm’s shift from Indian trade to debt collection and land management. The case surely absorbed time and resources. It also created an atmosphere of uncertainty under which the firm would have to operate. Every shipment and every transaction after the case would be subject to the greatest and most jealous scrutiny by at least a portion of Saint Augustine’s population. Panton Leslie’s success was a hollow victory.

--Dan Ernst

Culter on the Single Tax and The Hebrew Bible

Joshua Cutler, University of Houston, C.T. Bauer College of Business, has posted A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible:

Henry George (NYPL)

Henry George sparked a vast popular movement following the publication of his classic work Progress and Poverty. Seeking to explain why poverty always seemed to increase along with progress, George proposed that, as societies advanced, land owners were able to capture an increasing share of wealth. To remedy this, George proposed a “Single Tax” on the unimproved value of land, which would prevent land speculation and hoarding and make land available for all who desired to work it. While George was ostensibly an economist, he is best understood as an ethical-religious figure, and his most devoted followers were a diverse array of religious leaders and reformers. However, the actual religious substance of George’s ideas has been largely unexplored. I propose that George’s program was inspired by Jewish ideas and institutions originating from the Hebrew Bible. In Hebraic thought, by virtue of creating the earth, God is the only rightful owner of land. This principle was embodied in the Hebrew Bible’s land laws that ordained an equal distribution of land along with institutions to maintain this distribution over time. Centuries before George, I discuss how medieval Jewish rabbis had already derived a taxing power from the Hebraic land laws. These biblical land laws would also come to have a strong influence on European political thought through an intellectual tradition known as the “Hebrew Republic.” I attempt to understand Henry George’s thought as an unwitting revival of this tradition, with his Single Tax as an innovative adaption of the Hebraic institutions. The Hebraic understanding of land ownership continues to offer potential inspiration for alternative systems of taxation and economic regulation.

–Dan Ernst

Dear on California's Supreme Court Commissioners, 1885-1905

Jake Dear, Chief Supervising Attorney of the California Supreme Court, has posted California’s First Judicial Staff Attorneys: The Surprising Role That Commissioners Played, 1885–1905, in Creating the Courts of Appeal, which is forthcoming in Volume 15 of California Legal History.

In the late nineteenth and early twentieth centuries, the California Supreme Court employed legal staff — then called “commissioners” — quite differently from how it uses chambers attorneys and law clerks today. Controversy surrounding that former system led to creation of the Court of Appeal. The story unfolds like a Gilbert & Sullivan operetta:

The Supreme Court, regularly traveling up and down the state hearing oral arguments in San Francisco, Sacramento, and Los Angeles, was chronically unable to keep pace with an increasing influx of direct appeals from numerous trial courts. After the Legislature directed the court to hire “commissioners” to help with its workload, a few thousand opinions authored and signed by the court’s new staff were published in the California Reports — and approximately 700 more were published, along with hundreds of other unreported Supreme Court opinions, in the reports of “California Unreported Cases.” There were public accusations of overreaching by the staff commissioners and abdication of judicial responsibility by the justices, culminating in major litigation by a disgruntled appellate lawyer — ultimately upholding the court’s authority to use legal staff. The hired staff commissioners and elected justices played musical chairs, trading places numerous times — appearing to confirm criticisms that they were inappropriately interchangeable. Meanwhile, and amidst growing calls for the state to create an intermediate appellate court, the Supreme Court remained backlogged even with help from the staff commissioners. Finally, after nearly two decades, there was an agreement to jettison the criticized staff commissioner system, and to forbid its use ever again — paving the way for the voters’ acceptance of a constitutional amendment to create the California Courts of Appeal. When the music stopped, all remaining staff commissioners became appellate court justices.

Among other things, this article helps with an episode in Roscoe Pound's career that puzzled me, his service as Commissioner of Appeals of the Nebraska Supreme Court from 1901 to 1903.

--Dan Ernst

Paul on Judicial Supremacy in Antitrust

Sanjukta Paul, Wayne State University Law School, has posted Reconsidering Judicial Supremacy in Antitrust:

This paper reconsiders the foundations of judicial supremacy in antitrust, which rests ultimately upon the claim that the Sherman Act is a "common law statute." The common law statute thesis is that Congress delegated to judges the power to invent the criteria by which the law will allocate economic coordination rights under antitrust law. But Congress intended no such fundamental delegation of law-making power to the judiciary, as a reconsideration of the legislative history — informed by an examination of the concepts invoked in key legislative deliberations — shows. Notably, the massive influence of Chicago School law and economics in the domain of antitrust law has been underwritten by this judicial self-empowerment.

–Dan Ernst

Max Planck Studies in Global Legal History of the Iberian Worlds

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.  DRE]

The Max Planck Institute for European Legal History has a new publications series: Max Planck Studies in Global Legal History of the Iberian Worlds (MPIW) will present legal historical research on the Iberian worlds of the early modern and modern periods. Its volumes will cover not only regions that were part of the Spanish and Portuguese empires or stood in direct contact with them, but also examine the globalisation and localisation of normative knowledge throughout Europe, America, Asia and Africa. A particular emphasis lies on the investigation of cultural translation processes and phenomena of multinormativity. The series, edited by Thomas Duve, is published in Open Access, and in print as a hardcover edition by Brill.

The first volume now published - Knowledge of the Pragmatici: Legal and Moral Theological Literature and the Formation of Early Modern Ibero-America - is devoted to a long underestimated genre of normative literature that was of great significance for the formation of normative orders in early modern Ibero-America: small handbooks written for practical use. These could contain legal texts, but moral theological works and confession manuals were also among these widely used media, which were particularly important for the everyday practices of norm production.

The definition of this genre, as well as its function, dissemination and use from the 16th to the 18th century are the focus of the eleven contributions to this volume, which brings together the results of a collaborative research project (SFB 1095). A number of contributions focus on the methods of norm generation in the early modern period, in particular the role of pragmatic literature in these processes and the practices of epitomisation characteristic of this genre. The volume also includes studies on important authors (such as Martín de Azpilcueta) and on the circulation of books and knowledge. Further chapters analyse the presence and use of pragmatic literature in regional contexts from Mexico to South America.

The authors, almost all of whom are members of the MPIeR, come from Argentina, Brazil, Colombia, Germany, Italy, Peru and Spain. The volume, edited by Thomas Duve and Otto Danwerth, has just been published in Open Access; the hardcover version will become available at the end of April.  More information on the website of the MPIeR or on brill.com.

AJLH 60:1

American Journal of Legal History 60:1 (March 2020) has been published.  Here is the TOC. 

Editorial     Felice Batlan; Stefan Vogenauer

AJLH Alfred L. Brophy Prize   

Articles

The Hermit and the Boa Constrictor: Jeremy Bentham, Henry Brougham, and the Accessibility of Justice   
Chris Riley

‘The Great Britain of the South’: the Law of Contract in Early Colonial New Zealand   
Warren Swain

The Background to Riggs v. Palmer   
William B Meyer

The Historical Evolution of Allegiance During Occupation   
Manuel Galvis Martinez

Book Reviews

Alfred L. Brophy, University, Court, & Slave: Pro-Slavery Thought in Southern Colleges & Courts & the Coming of Civil War    
Kelly Kennington

Jean-Christophe Gaven, Le Crime de Lèse-nation: Histoire d'une Invention Juridique et Politique
Chrystelle Gazeau

Aniceto Masferrer, ed., The Western Codification of Criminal Law: A Revision of the Myth of its Predominant French Influence   
Luigi Lacchè

McNeil on Aboriginal Title in Canada

Kent McNeil, York University Osgoode Hall Law School, has posted Discarding Old Prejudices: Judicial Precedent and Aboriginal Title.  This is the Law Foundation of Saskatchewan Lecture, delivered at the University of Saskatchewan College of Law on October 28, 2019.  It is based on the author’s Flawed Precedent: The St. Catherine’s Case and Aboriginal Title (Vancouver: UBC Press, 2019)

This talk on judicial precedent and Aboriginal title combines legal history and current law. The legal history is important because it informs the current law. It also reveals the racism in Canadian law that retarded the development of the concept of Aboriginal title until the 1970s.

My discussion of the early case law focuses on St. Catherine’s Milling and Lumber Co. v. The Queen, decided by the Privy Council in 1888. It was the leading judicial precedent on the source and content of Aboriginal title right up to the Supreme Court of Canada’s 1973 decision in Calder v. Attorney General of British Columbia. The question in St. Catherine’s was this: Did the Crown in right of Ontario or the Crown in right of Canada benefit from the surrender by the Saulteaux people of the Anishinaabe Nation of their Aboriginal title by Treaty 3 in 1873?

--Dan Ernst