An Essay Collection on US Church-State Relations

Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776-1833, edited by Carl H. Esbeck and Jonathan J. Den Hartog, is available from the University of Missouri Press on November 1st but may be ordered now at a prepublication discount for $30.  Use code DRD2019 here or when calling 800-621-2736.

The American Revolution set in motion a round of constitution making in the colonies, several of which soon declared themselves sovereign states and severed all remaining ties to the British Crown. In forming these written constitutions, the delegates to the state conventions were forced to address the issue of church-state relations. Each colony had unique and differing traditions of church-state relations rooted in the colony’s peoples, their country of origin, and religion.

This definitive volume, comprising twenty-one original essays by eminent historians, law professors, and political scientists, is a comprehensive state-by-state account of disestablishment in the original thirteen states, as well as a look at similar events in the soon-to-be-admitted states of Vermont, Tennessee, and Kentucky. Also considered are disestablishment in Ohio (the first state admitted from the Northwest Territory), Louisiana and Missouri (the first states admitted from the Louisiana Purchase), Maine (carved from Massachusetts), and Florida (wrestled from Spain under U.S. pressure). The volume makes a unique scholarly contribution by recounting in detail the process of disestablishment in each of the colonies, as well as religion’s constitutional and legal place in the new states of the federal republic.

An endorsement:

“Myths, half-truths, and downright errors surround popular perceptions of the American separation of church and state. This outstanding book, with its first-rate roster of historians and legal scholars, demonstrates that American church disestablishment proceeded state by state, in many different ways and over a lengthy period of time. It will be of great interest to historians of the early United States and may be even more important for those who wrestle with challenging church-state questions in our own day.” —Mark Noll, professor of history, University of Notre Dame.

--Dan Ernst

Conlin, "The Constitutional Origins of the American Civil War"

Cambridge University Press has published The Constitutional Origins of the American Civil War (June 2019), by Michael F. Conlin (Eastern Washington University). A description from the Press:

In an incisive analysis of over two dozen clauses as well as several 'unwritten' rules and practices, The Constitutional Origins of the American Civil War shows how the Constitution aggravated the sectional conflict over slavery to the point of civil war. Going beyond the fugitive slave clause, the three-fifths clause, and the international slave trade clause, Michael F. Conlin demonstrates that many more constitutional provisions and practices played a crucial role in the bloody conflict that claimed the lives of over 750,000 Americans. He also reveals that ordinary Americans in the mid-nineteenth century had a surprisingly sophisticated knowledge of the provisions and the methods of interpretation of the Constitution. Lastly, Conlin reminds us that many of the debates that divide Americans today were present in the 1850s: minority rights vs. majority rule, original intent vs. a living Constitution, state's rights vs. federal supremacy, judicial activism vs. legislative prerogative, secession vs. union, and counter-majoritarianism vs. democracy.

A few blurbs:

‘The Constitutional Origins of the American Civil War is a must-read for anyone interested in either the constitutional dimensions of the conflict over slavery or the influence of constitutional arguments on public policy debates more generally.' -- Earl Maltz

‘Michael F. Conlin has given us an authoritative biography of the Founders' Constitution as the People's charter. His exhaustively researched and brilliantly argued book should lay to rest any doubt that the original Constitution was responsible for the Civil War.' -- H. Robert Baker

More information is available here.

-- Karen Tani

Bartie's "Free Hands and Minds"

Just out from Hart is Free Hands and Minds: Pioneering Australian Legal Scholars, by Susan Bartie,  Lecturer in Law at the University of Tasmania:

Peter Brett (1918–1975), Alice Erh-Soon Tay (1934–2004) and Geoffrey Sawer (1910–1996) are key, yet largely overlooked, members of Australia's first community of legal scholars. This book is a critical study of how their ideas and endeavours contributed to Australia's discipline of law and the first Australian legal theories. It examines how three marginal figures – a Jewish man (Brett), a Chinese woman (Tay), and a war orphan (Sawer) – rose to prominence during a transformative period for Australian legal education and scholarship.

Drawing on in-depth interviews with former colleagues and students, extensive archival research, and an appraisal of their contributions to scholarship and teaching, this book explores the three professors' international networks and broader social and historical milieux. Their pivotal leadership roles in law departments at the University of Melbourne, University of Sydney, and the Australian National University are also critically assessed.

Ranging from local experiences and the concerns of a nascent Australian legal academy to the complex transnational phenomena of legal scholarship and theory, Free Hands and Minds makes a compelling case for contextualising law and legal culture within society. At a time of renewed crisis in legal education and research in the common law world, it also offers a vivid, nuanced and critical account of the enduring liberal foundations of Australia's discipline of law.

The very interesting TOC is here.

–Dan Ernst

Essays on Fascist, Nazi and Authoritarian Criminal Law

Ideology and Criminal Law: Fascist, National Socialist and Authoritarian Regimes, edited by Stephen Skinner and published by Hart, is now available:

With populist, nationalist and repressive governments on the rise around the world, questioning the impact of politics on the nature and role of law and the state is a pressing concern. If we are to understand the effects of extreme ideologies on the state's legal dimensions and powers – especially the power to punish and to determine the boundaries of permissible conduct through criminal law – it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection's 16 chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity, self-perception and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law.

–Dan Ernst

Schramm, "Censorship and the Representation of the Sacred in Nineteenth-Century England"

New from Oxford University Press: Censorship and the Representation of the Sacred in Nineteenth-Century England (July 2019), by Jan-Melissa Schramm (Lecturer in Nineteenth-Century Literature, University of Cambridge, and Fellow in English, Trinity Hall, Cambridge). A description from the Press:

Throughout the nineteenth century, the performance of sacred drama on the English public stage was prohibited by law and custom left over from the Reformation: successive Examiners of Plays, under the control of the Lord Chamberlain's Office, censored and suppressed both devotional and blasphemous plays alike. Whilst the Biblical sublime found expression in the visual arts, the epic, and the oratorio, nineteenth-century spoken drama remained secular by force of precedent and law. The maintenance of this ban was underpinned by Protestant anxieties about bodily performance, impersonation, and the power of the image that persisted long after the Reformation, and that were in fact bolstered by the return of Catholicism to public prominence after the passage of the Catholic Relief Act in 1829 and the restoration of the Catholic Archbishoprics in 1850. But even as anti-Catholic prejudice at mid-century reached new heights, the turn towards medievalism in the visual arts, antiquarianism in literary history, and the 'popular' in constitutional reform placed England's pre- Reformation past at the centre of debates about the uses of the public stage and the functions of a truly national drama.

This book explores the recovery of the texts of the extant mystery-play cycles undertaken by antiquarians in the early nineteenth century and the eventual return of sacred drama to English public theatres at the start of the twentieth century. Consequently, law, literature, politics, and theatre history are brought into conversation with one another in order to illuminate the history of sacred drama and Protestant ant-theatricalism in England in the long nineteenth-century.

More information is available here.

-- Karen Tani

Faulkenbury, "Poll Power: The Voter Education Project and the Movement for the Ballot in the American South"

Recently released by the University of North Carolina Press: Poll Power: The Voter Education Project and the Movement for the Ballot in the American South (April 2019), by Evan Faulkenbury (State University of New York, Cortland). A description from the Press:

The civil rights movement required money. In the early 1960s, after years of grassroots organizing, civil rights activists convinced nonprofit foundations to donate in support of voter education and registration efforts. One result was the Voter Education Project (VEP), which, starting in 1962, showed far-reaching results almost immediately and organized the groundwork that eventually led to the Voting Rights Act of 1965. In African American communities across the South, the VEP catalyzed existing campaigns; it paid for fuel, booked rallies, bought food for volunteers, and paid people to canvass neighborhoods. Despite this progress, powerful conservatives in Congress weaponized the federal tax code to undercut the important work of the VEP.

Though local power had long existed in the hundreds of southern towns and cities that saw organized civil rights action, the VEP was vital to converting that power into political motion. Evan Faulkenbury offers a much-needed explanation of how philanthropic foundations, outside funding, and tax policy shaped the southern black freedom movement.

A few blurbs:

"In this innovative study, Faulkenbury goes behind the scenes to elucidate the relationship between the civil rights movement and philanthropic foundations. An organizational history of the Voter Education Project and its funders, Poll Power demonstrates that as civil rights activists in countless communities across the South began to institutionalize their hard-won access to the ballot, their opponents answered with federal legislation that severely curtailed the chances of their success. This work is essential for understanding the intricacies of voter suppression efforts, both past and present."--Katherine Mellen Charron 

"This important contribution focuses on a neglected yet critical episode in the civil rights movement, explaining well how an unexpected alliance of politicians, philanthropists, and civil rights activists launched voter registration projects and achieved important victories despite segregationists in Congress and state and local governments."--Olivier Zunz

More information is available here.

-- Karen Tani

Lattman on Bodin's De la Démonomanie des Sorciers

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

Christopher Lattmann, Der Teufel, die Hexe und der Rechtsgelehrte. Crimen magiae und Hexenprozess in Jean Bodins De la Démonomanie des Sorciers (Studien zur europäischen Rechtsgeschichte 318) Frankfurt am Main: Klostermann 2019.  390 p., 69,00 €, ISBN 978-3-465-04389-8

Jean Bodin is known above all as the author of the Six livres de la République (1576) and the founder of the theory of sovereignty. Most modern readers, however, are less familiar with his demonology of 1580, which was also a bestseller at the time - not least because witchcraft law was hardly standardised in early modern France. In De la Démonomanie des Sorciers (1580), Bodin discussed the nature of witchcraft and gave instructions for the strict legal prosecution of the crimen magiae. Christopher Lattmann's study is the first to provide a detailed examination of this controversial legal work from the perspective of legal history. Bodin understood witchcraft as a phenomenon that resulted from the interaction of God, devil and man. His view of the world is reflected in his material witchcraft law, above all in his treatment of the various witchcraft offences: from entering into a pact with the devil to participating in the Witches' Sabbath or using maleficent magic. Lattmann demonstrates the influences of Mosaic, Roman and ecclesiastical law as well as of contemporary demonology on Bodin's work. Against the background of French criminal procedural law, he shows that Bodin established a special summary procedure for witch trials that differed from the regular inquisition procedure. Since Bodin could not base himself on any existing French law for this purpose, he drew on the doctrines of foreign criminal jurists. Lattmann thus shows how Bodin's work originated in a European legal sphere and became an important contribution to European criminal law in the 16th century.

–posted by Dan Ernst

"A Right to Bear Arms"

Out this month from Penguin is A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment, edited by Jennifer Tucker, Barton C. Hacker, and Margaret Vining.  Contributors include Saul Cornell, Kevin Sweeney, Joyce Malcolm, Priya Satia, Patrick Charles, Lois Schwoerer, and Randolph Roth.

This collection of essays explores the way history itself has become a contested element within the national legal debate about firearms.

The debate over the Second Amendment has unveiled new and useful information about the history of guns and their possession and meaning in the United States of America. History itself has become contested ground in the debate about firearms and in the interpretation of the Second Amendment to the Constitution of the United States. Specifically this collection of essays gives special attention to the important and often overlooked dimension of the applications of history in the law. These essays illustrate the complexity of the firearms debate, the relation between law and behavior, and the role that historical knowledge plays in contemporary debates over law and policy. Wide-ranging and stimulating The Right to Bear Arms is bound to captivate both historians and casual readers alike.

--Dan Ernst

Harmon's "Reclaiming the Reservation"

Alexandra Harmon, University of Washington, has published Reclaiming the Reservation: Histories of Indian Sovereignty Suppressed and Renewed (University of Washington Press, 2019).

In the 1970s the Quinault and Suquamish, like dozens of Indigenous nations across the United States, asserted their sovereignty by applying their laws to everyone on their reservations. This included arresting non-Indians for minor offenses, and two of those arrests triggered federal litigation that had big implications for Indian tribes’ place in the American political system. Tribal governments had long sought to manage affairs in their territories, and their bid for all-inclusive reservation jurisdiction was an important, bold move, driven by deeply rooted local histories as well as pan-Indian activism. They believed federal law supported their case.

In a 1978 decision that reverberated across Indian country and beyond, the Supreme Court struck a blow to their efforts by ruling in Oliphant v. Suquamish Indian Tribe that non-Indians were not subject to tribal prosecution for criminal offenses. The court cited two centuries of US legal history to justify their decision but relied solely on the interpretations of non-Indians.

In Reclaiming the Reservation, Alexandra Harmon delves into Quinault, Suquamish, and pan-tribal histories to illuminate the roots of Indians’ claim of regulatory power in their reserved homelands. She considers the promises and perils of relying on the US legal system to address the damage caused by colonial dispossession. She also shows how tribes have responded since 1978, seeking and often finding new ways to protect their interests and assert their sovereignty

--Dan Ernst

Balto, "Occupied Territory: Policing Black Chicago from Red Summer to Black Power"

New from the University of North Carolina Press: Occupied Territory: Policing Black Chicago from Red Summer to Black Power (July 2019), by Simon Balto (University of Iowa). A description from the Press:

In July 1919, an explosive race riot forever changed Chicago. For years, black southerners had been leaving the South as part of the Great Migration. Their arrival in Chicago drew the ire and scorn of many local whites, including members of the city’s political leadership and police department, who generally sympathized with white Chicagoans and viewed black migrants as a problem population. During Chicago’s Red Summer riot, patterns of extraordinary brutality, negligence, and discriminatory policing emerged to shocking effect. Those patterns shifted in subsequent decades, but the overall realities of a racially discriminatory police system persisted.

In this history of Chicago from 1919 to the rise and fall of Black Power in the 1960s and 1970s, Simon Balto narrates the evolution of racially repressive policing in black neighborhoods as well as how black citizen-activists challenged that repression. Balto demonstrates that punitive practices by and inadequate protection from the police were central to black Chicagoans’ lives long before the late-century "wars" on crime and drugs. By exploring the deeper origins of this toxic system, Balto reveals how modern mass incarceration, built upon racialized police practices, emerged as a fully formed machine of profoundly antiblack subjugation.

A few blurbs:

"Simon Balto’s study of twentieth-century black Chicago provides new insights into the historical roots of police abuse in black communities while challenging scholarship that posits the mid-twentieth century as a turning point for deteriorating relationships between the police and black Americans. This beautifully written history is a model of clarity and moral passion."--Beryl Satter

"The last several years have seen important histories written about the rise of mass incarceration in the United States, but what has been missing are studies that deepen our understanding of American policing. Simon Balto offers a much-needed history of policing in Chicago, clearly articulating the connection between the Chicago Police Department’s record of racism and abuse and its contemporary crisis of police brutality."--Keeanga-Yamahtta Taylor

More information is available here. You can learn more about the book over at New Books Network, where they recently posted an interview with Professor Balto.

-- Karen Tani

Postema's "Bentham and the Common Law Tradition"

Gerald J. Postema, University of North Carolina, has published a second edition of his Bentham and the Common Law Tradition (Oxford University Press):

This work explores the relationship between Bentham’s utilitarian practical philosophy and his positivist jurisprudence. These theories appear to be in tension because his utilitarian commitment to the sovereignty of utility as a practical decision principles seems inconsistent with his positivist insistence on the sovereignty of the will of the lawmaker. Two themes emerge from the author’s attempt in this work to reconcile these two core elements of Bentham’s practical thought.

First, Bentham’s conception of law does not fit the conventional model of legal positivism. Bentham was not just a utilitarian and a positivist; he was a positivist by virtue of his commitment to a utilitarian understanding of the fundamental task of law. Moreover, his emphasis on the necessary publicity and the systematic character of law led him to insist on an essential role for utilitarian reasons in the regular public functioning of law.

Second, Bentham’s radical critique of common law theory and practice convinced him of the necessity to reconcile the need for certainty of law with an equally great need for its flexibility. He eventually developed a constitutional framework for adjudication in the shadow of codified law that accorded judges discretion to decide particular cases according to their best judgement of the balance of utilities, guaranteeing the accountability and appropriate motivation of judicial decision-making through institutional incentives.

The original text of this work, first published in 1986, remains largely unchanged, but an afterward reconsiders and revises some themes in response to criticism.

--Dan Ernst

Inniss's "The Princeton Fugitive Slave"

Lolita Buckner Inniss, SMU Dedman School of Law, has published The Princeton Fugitive Slave: The Trials of James Collins Johnson (Fordham University Press, 2019):

James Collins Johnson made his name by escaping slavery in Maryland and fleeing to Princeton, New Jersey, where he built a life in a bustling community of African Americans working at what is now Princeton University. After only four years, he was recognized by a student from Maryland, arrested, and subjected to a trial for extradition under the 1793 Fugitive Slave Act. On the eve of his rendition, after attempts to free Johnson by force had failed, a local aristocratic white woman purchased Johnson’s freedom, allowing him to avoid re-enslavement. The Princeton Fugitive Slave reconstructs James Collins Johnson’s life, from birth and enslaved life in Maryland to his daring escape, sensational trial for re-enslavement, and last-minute change of fortune, and through to the end of his life in Princeton, where he remained a figure of local fascination.

Stories of Johnson’s life in Princeton often describe him as a contented, jovial soul, beloved on campus and memorialized on his gravestone as “The Students Friend.” But these familiar accounts come from student writings and sentimental recollections in alumni reports—stories from elite, predominantly white, often southern sources whose relationships with Johnson were hopelessly distorted by differences in race and social standing. In interrogating these stories against archival records, newspaper accounts, courtroom narratives, photographs, and family histories, author Lolita Buckner Inniss builds a picture of Johnson on his own terms, piecing together the sparse evidence and disaggregating him from the other black vendors with whom he was sometimes confused.

By telling Johnson’s story and examining the relationship between antebellum Princeton’s black residents and the economic engine that supported their community, the book questions the distinction between employment and servitude that shrinks and threatens to disappear when an individual’s freedom is circumscribed by immobility, lack of opportunity, and contingency on local interpretations of a hotly contested body of law.

--Dan Ernst

Johnston on the CIA under JFK

James H. Johnston, “a lawyer, writer, and historian in Washington, DC,” has published Murder, Inc.: The CIA under John F. Kennedy with Potomac Books, a division of the University of Nebraska Press. Mr. Johnston’s post on the book is here.

Late in his life, former president Lyndon B. Johnson told a reporter that he didn’t believe the Warren Commission’s finding that Lee Harvey Oswald acted alone in killing President John F. Kennedy. Johnson thought Cuban president Fidel Castro was behind it. After all, Johnson said, Kennedy was running “a damned Murder, Inc., in the Caribbean,” giving Castro reason to retaliate.

Murder, Inc., tells the story of the CIA’s assassination operations under Kennedy up to his own assassination and beyond. James H. Johnston was a lawyer for the Senate Intelligence Committee in 1975, which investigated and first reported on the Castro assassination plots and their relation to Kennedy’s murder. Johnston examines how the CIA steered the Warren Commission and later investigations away from connecting its own assassination operations to Kennedy’s murder. He also looks at the effect this strategy had on the Warren Commission’s conclusions that assassin Lee Harvey Oswald acted alone and that there was no foreign conspiracy.

Sourced from in-depth research into the “secret files” declassified by the JFK Records Act and now stored in the National Archives and Records Administration, Murder, Inc. is the first book to narrate in detail the CIA’s plots against Castro and to delve into the question of why retaliation by Castro against Kennedy was not investigated.

--Dan Ernst

Leiber's Lost Treatise on Martial Law

To Save the Country: A Lost Treatise on Martial Law, written by Francis Lieber and G. Norman Lieber and edited and with an introduction by Will Smiley and John Fabian Witt, is out from the Yale Univbersity Press.  Francis Lieber (1798–1872) was professor at Columbia College who advised Abraham Lincoln on the law of war. G. Norman Lieber (1837–1923), Francis’s son, taught law at West Point. Will Smiley is an assistant professor of humanities at the University of New Hampshire. John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School and the Head of Yale’s Davenport College.

The last work of Abraham Lincoln’s law of war expert Francis Lieber was long considered lost—until Will Smiley and John Fabian Witt discovered it in the National Archives. Lieber’s manuscript on emergency powers and martial law addresses important contemporary debates in law and political philosophy and stands as a significant historical discovery.

As a key legal advisor to the Lincoln White House, Columbia College professor Francis Lieber was one of the architects and defenders of Lincoln’s most famous uses of emergency powers during the Civil War. Lieber’s work laid the foundation for rules now accepted worldwide. In the years after the war, Lieber and his son turned their attention to the question of emergency powers. The Liebers’ treatise addresses a vital question, as prominent since 9/11 as it was in Lieber’s lifetime: how much power should the government have in a crisis? The Liebers present a theory that aims to preserve legal restraint, while giving the executive necessary freedom of action.

Smiley and Witt have written a lucid introduction that explains how this manuscript is a key discovery in two ways: both as a historical document and as an important contribution to the current debate over emergency powers in constitutional democracies.

Here are some endorsements:

 “When arguments for a legally unrestrained executive are again in fashion, this retrieval of Lincoln’s lawyer’s theory of appropriate legal restraint during wartime emergency could not be more timely.”—David Dyzenhaus, University of Toronto

“Smiley and Witt have unearthed a lost treasure. As we debate how our constitutional democracy handles great stress, this work helps us understand how the system has survived so far.”—Matthew C. Waxman, Columbia University

“Through their extraordinary discovery of Francis Lieber’s unpublished notes, Smiley and Witt not only provide a crucial new primary source that contextualizes Lieber’s role in the development of laws of war but also, amazingly enough, a fruitful way to reconsider the old, vital question of what constraints law can offer in times of war. A book every historian of the Civil War and every scholar of laws of warfare should rush to read.”—Gregory P. Downs, author of After Appomattox: Military Occupation and the Ends of War

“The manuscripts that Smiley and Witt have recovered should be required reading for anyone who cares about the operation of the Constitution in wartime and more generally about what legal limits should—or should not—constrain the government in confronting emergencies.”—Amanda L. Tyler, University of California, Berkeley School of Law

--Dan Ernst

Stacey's "Law and Imagination in Medieval Wales"

Robin Chapman Stacey, University of Washington, has published Law and the Imagination in Medieval Wales (University of Pennsylvania Press, 2019):

In Law and the Imagination in Medieval Wales, Robin Chapman Stacey explores the idea of law as a form of political fiction: a body of literature that blurs the lines generally drawn between the legal and literary genres. She argues that for jurists of thirteenth-century Wales, legal writing was an intensely imaginative genre, one acutely responsive to nationalist concerns and capable of reproducing them in sophisticated symbolic form. She identifies narrative devices and tropes running throughout successive revisions of legal texts that frame the body as an analogy for unity and for the court, that equate maleness with authority and just rule and femaleness with its opposite, and that employ descriptions of internal and external landscapes as metaphors for safety and peril, respectively.

Historians disagree about the context in which the lawbooks of medieval Wales should be read and interpreted. Some accept the claim that they originated in a council called by the tenth-century king Hywel Dda, while others see them less as a repository of ancient custom than as the Welsh response to the general resurgence in law taking place in western Europe. Stacey builds on the latter approach to argue that whatever their origins, the lawbooks functioned in the thirteenth century as a critical venue for political commentary and debate on a wide range of subjects, including the threat posed to native independence and identity by the encroaching English; concerns about violence and disunity among the native Welsh; abusive behavior on the part of native officials; unwelcome changes in native practice concerning marriage, divorce, and inheritance; and fears about the increasing political and economic role of women.

The TOC and an engaging excerpt is here.  The latter commences:

Some years ago, I found myself teaching a class on medieval law. This was a seminar intended for history majors, many of whom were planning ultimately to enter the legal profession, and the students were both bright and curious. We were discussing a text I knew well, the Welsh Laws of Court, when a student raised her hand to ask about a passage that appeared to limit the sanctuary (nawdd) a female baker was allowed to grant an offender to the distance she could throw her baking scraper. I started in with an explanation of how nawdd worked and why persons of greater status would have been able to extend more protection had they been approached. She looked confused, so I dramatized the event for her, imagining a scenario in which a wild-eyed offender with pursuers hot on his heels bursts into a prince's kitchen searching for someone to help him. He rushes over to the baker, who is there scraping flour into a bowl, and hurls himself at her feet begging for sanctuary. Taking pity on him, she throws her baking tool into the air, and he then becomes safe from arrest as long as he stays within the space defined by her throw, remaining amid the pots and pans for several days while the terms for his release are negotiated. The questions that ensued were completely predictable.

And you thought you were learned.

Some endorsements:

"A field-changing book. Robin Chapman Stacey's approach not only offers a valuable corrective to those histories that treat legal texts as straightforward representations of practice; it also gets us out of the mire of speculation about lost manuscripts, dating, and provenance."—Emily Steiner, University of Pennsylvania

"Drawing on research into the poetry, narrative, and biography of the period, as well as its law and literature, Robin Chapman Stacey argues that the corpus of medieval Welsh Law known as Cyfraith Hywel Dda is a political document emerging from a changing thirteenth-century Wales in which the nobility and learned classes felt themselves and their traditions threatened by English cultural influence and political power on one hand, and the expanding pretensions of Welsh princes on the other."—Catherine McKenna, Harvard University

--Dan Ernst

Twitty, "Before Dred Scott"

Over at the New Books Network this week, Anne Twitty (University of Mississippi) discusses her 2016 book Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787-1857 (Cambridge University Press). We often save mentions of interviews, podcasts, etc. for our "Weekend Roundup" post rather than giving them a stand-alone post, but I realized -- to my chagrin -- that we never covered Before Dred Scott when it came out, as is our custom for new releases.* With apologies for the oversight, here is some more information about the book:

Before Dred Scott draws on the freedom suits filed in the St Louis Circuit Court to construct a groundbreaking history of slavery and legal culture within the American Confluence, a vast region where the Ohio, Mississippi, and Missouri Rivers converge. Formally divided between slave and free territories and states, the American Confluence was nevertheless a site where the borders between slavery and freedom, like the borders within the region itself, were fluid. Such ambiguity produced a radical indeterminacy of status, which, in turn, gave rise to a distinctive legal culture made manifest by the prosecution of hundreds of freedom suits, including the case that ultimately culminated in the landmark United States Supreme Court decision in Dred Scott vs Sandford. Challenging dominant trends in legal history, Before Dred Scott argues that this distinctive legal culture, above all, was defined by ordinary people's remarkable understanding of and appreciation for formal law.

A few blurbs:

‘Anne Twitty's compact and compelling book prompts us to redraw regional borders and rethink legal cultures. In contrast to the longstanding view of the ‘American Confluence' as a house divided, a place where the Ohio and Mississippi rivers bounded conflicting regimes of slave and free labor, Before Dred Scott forwards an alternative mapping characterized by fluid borders and connected by a common legal culture with remarkably deep roots among diverse populations. The book will not settle arguments about regions and rules of law, but it will provoke some very productive ones.' -- Stephen Aron

‘Anne Twitty has brilliantly illuminated a significant chapter in the struggle against slavery - the hundreds of ‘freedom suits' brought by persons invoking the doctrine of ‘once free, always free' to claim that their prior status as free persons invalidated their enslavement. Not all of them succeeded, but Twitty has done more than show what happened in the courtroom. She has given historical presence to the lives of the freedom seekers: to her exhaustive research into their lives she has added a sure-handed and creative touch that makes this book one of the most significant contributions to antislavery scholarship in many years.' -- David Konig

More information, including the TOC, is available here. And do check out Professor Twitty's interview!

-- Karen Tani

*If you have a new publication, please feel free to let us know directly. We don't have a perfect system for identifying new work and we welcome suggestions of items to cover. 

Schumaker's "Troublemakers"

Kathryn Schumaker, University of Oklahoma, has published Troublemakers: Students’ Rights and Racial Justice in the Long 1960s (NYU Press):

In the late 1960s, protests led by students roiled high schools across the country. As school desegregation finally took place on a wide scale, students of color were particularly vocal in contesting the racial discrimination they saw in school policies and practices. And yet, these young people had no legal right to express dissent at school. It was not until 1969 that the Supreme Court would recognize the First Amendment rights of students in the landmark Tinker v. Des Moines case.

A series of students’ rights lawsuits in the desegregation era challenged everything from school curricula to disciplinary policies. But in casting students as “troublemakers” or as “culturally deficient,” school authorities and other experts persuaded the courts to set limits on rights protections that made students of color disproportionately vulnerable to suspension and expulsion.

Troublemakers traces the history of black and Chicano student protests from small-town Mississippi to metropolitan Denver and beyond, showcasing the stories of individual protesters and demonstrating how their actions contributed to the eventual recognition of the constitutional rights of all students. Offering a fresh interpretation of this pivotal era, Troublemakers shows that when black and Chicano teenagers challenged racial discrimination in American public schools, they helped remake American constitutional law and establish protections of free speech, due process, equal protection, and privacy for students.

--Dan Ernst

Weekend Roundup

• Over at New Books in Law, Jonathan Gienapp (Stanford University) discusses his book The Second Creation; former guest blogger Kimberly Welch (Vanderbilt University) discusses Black Litigants in the Antebellum American South.

• From the New Legal Realism blog: Malcolm Feeley (University of California, Berkeley) on Frank Remington, Wisconsin, and the influential American Bar Foundation project on the administration of criminal justice in the U.S. (The project was a collaboration with the Ford Foundation, the ABA, and others.) Willard Hurst makes a few cameo appearances.

• Are you up to speed on the due dates for the awards and prizes of the Organization of American Historians?  We ask, because we’re jurying one of them.  DRE 

• The HistPhil forum on the Dartmouth College v. Woodward case continues. Here's a contribution from Evelyn Atkinson (American Bar Foundation doctoral fellow/Ph.D. candidate, University of Chicago).

•  From the Washington Post's Made by History section: Ariela Gross (USC) and Alejandro de la Fuente (Harvard University) on the history of racialized understandings of citizenship; Smita Ghosh (Georgetown University) on migrant detention; Carly Goodman (co-editor, Made by History), S. Deborah Kang (California State University San Marcos), and Yael Schacher (Refugees International) on the power of immigrant rights advocates to protect and enforce the right to asylum; Rebecca Spang (Indiana University) on what the French Revolution teaches us about the dangers of gerrymandering; and more.

• Call for Papers: “Law and Political Economy: Democracy After Neoliberalism,” the inaugural Law and Political Economy Project conference. 

• For a limited time, The Czar and the Slaves: Two Puzzles in the History of International Arbitration, by Bennett Ostdiek and John Fabian Witt is open access in the American Journal of International Law.

• Newly published online in Law and History Review and Cambridge Core: Method and Dialogue in History and Originalism by Logan Everett Sawyer, and “Amongst the Most Desirable Reading”: Advertising and the Fetters of the Newspaper Press in Britain, c. 1848–1914, by Anat Rosenberg.

• ICYMI: Manisha Sinha on The New Fugitive Slave Laws in NYRB.  As previously mentioned (but now the subject of an official HLS announcement), Property law scholar [and Legal Historian] Molly Brady joins the Harvard Law faculty.  A play on McNaughton's Case at the Edinburgh Fringe, via The Scotsman.

• Update: Listen to Sarah Milov discuss the controversy over an NPR segment that used her work without attribution here. Background here. H/t: Emily Prifogle and @womenalsoknowhistory

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

Casto to Speak on Robert H. Jackson and FDR

William R. Casto, the Paul Whitfield Horn Professor at Texas Tech University, will speak on his book Advising the President: Attorney General Robert H. Jackson and Franklin D. Roosevelt, published last year by the University Press of Kansas, at the Franklin D. Roosevelt Library and Museum on Wednesday, July 31, 2019 at 4:00 p.m.  Click here to register. 

It is broadly understood that a president might test the limits of the law in extraordinary circumstances -- and does so with advice from legal counsel. Advising the President is an exploration of this process, viewed through the experience of President Franklin D. Roosevelt and Robert H. Jackson on the eve of World War II. The book directly grapples with the ethical problems inherent in advising a president on actions of doubtful legality; eschewing partisan politics, it presents a practical, realistic model for rendering -- and judging the propriety of -- such advice.

Jackson, who would go on to be the chief US prosecutor at the Nuremberg war crimes trials, was the US solicitor general from 1938-1940, US attorney general from 1940-1941, and Supreme Court justice from 1941-1954. William R. Casto examines the legal arguments advanced by Roosevelt for controversial wartime policies such as illegal wiretapping and unlawful assistance to Great Britain, all of which were related to important issues of national security. Putting these episodes in political and legal context, Casto makes clear distinctions between what the adviser tells the president and what he tells others, including the public, and between advising the president and subsequently facilitating the president's decision.

Based upon the real-life experiences of a great attorney general advising a great president, Casto's timely work presents a pragmatic yet ethically powerful approach to giving legal counsel to a president faced with momentous, controversial decisions.

--Dan Ernst

Hasday, Intimate Lies and the Law

Out any day now from Oxford University Press: Intimate Lies and the Law, by Jill Elaine Hasday (University of Minnesota). In canvassing and analyzing the current law of "intimate deception," the book devotes significant attention to history. Specifically, the book explores why the remedies available to deceived intimates contracted significantly over the course of the twentieth century. Here’s a description from the Press:

Intimacy and deception are often entangled.  People deceive to lure someone into a relationship or to keep her there, to drain an intimate’s bank account or to use her to acquire government benefits, to control an intimate or to resist domination, or to capture myriad other advantages.  No subject is immune from deception in dating, sex, marriage, and family life.  Intimates can lie or otherwise intentionally mislead each other about anything and everything.

Suppose you discover that an intimate has deceived you and inflicted severe—even life-altering—financial, physical, or emotional harm.  After the initial shock and sadness, you might wonder whether the law will help you secure redress.  But the legal system refuses to help most people deceived within an intimate relationship.  Courts and legislatures have shielded this persistent and pervasive source of injury, routinely denying deceived intimates access to the remedies that are available for deceit in other contexts.

Jill Elaine Hasday’s Intimate Lies and the Law is the first book that systematically examines deception in intimate relationships and uncovers the hidden body of law governing this duplicity.  Hasday argues that the law has placed too much emphasis on protecting intimate deceivers and too little importance on helping the people they deceive.  The law can and should do more to recognize, prevent, and redress the injuries that intimate deception can inflict.

Entering an intimate relationship should not mean losing the law’s protection from deceit.

A few blurbs:

"Intimate Lies and the Law is rigorous, bold, and carefully researched, yet terrifically readable. Hasday has dug far and deep into the law and social science of intimate deception to give us an authoritative volume on this wrenching human domain. Whereas the law often blames victims for being duped, Hasday imagines a world in which trust is supported and rewarded. Her proposal for change-that the law treat intimate deception more like other kinds of deception-is powerful and sweeping, yet practical and workable. Timely and important, Intimate Lies and the Law has the potential to reshape not only the legal terrain but the very human relationships that live and breathe in the law's shadow." -- Elizabeth Emens

"In Intimate Lies and the Law, Jill Hasday maps a big, fascinating, sobering subject: the law's regulation (including neglect) of deceptions amongst those closest to us. She explores this difficult terrain masterfully with verve, thoroughness, and a keen eye for the telling detail. She casts in a new light a huge and influential body of law that teems with experiences and lessons that are simultaneously familiar and odd. This is an important book that will be of interest not only to academics but also to general readers. Impressively rigorous, it is also exceptionally accessible." -- Randall Kennedy

More information, including a preview of the book's introduction, is available here, at Professor Hasday's website. 

-- Karen Tani