Revkin and Gramlick on Fiscal Policing in Civil War DC

Mara Revkin, Duke University School of Law, and Gage Gramlick, a JD candidate at Duke, have posted The Civil War Origins of Fiscal Policing: Evidence from the District of Columbia:

The rise of “fiscal policing” in the United States—the use of fines, fees, and forfeitures to extract revenue from civilian populations—is widely described in previous scholarship as a relatively recent development with roots in post-1970s municipal austerity policies. A smaller literature argues that the revenue-extracting function of American policing can be traced earlier to slave patrols before the Civil War and Reconstruction-era Black Codes in the South. But this Article is the first to show that fiscal policing in the North has roots a century deeper than the austerity account recognizes. We demonstrate this through a case study of the nation’s capital, drawing on an original dataset compiled from the annual reports of the Metropolitan Police of the District of Columbia from 1862 to 1877 to show that revenue extraction was not a subsequent corruption of the Metropolitan Police’s original crime-control purpose but a core feature of its institutional design from the outset. We supplement the quantitative data with contemporary newspaper accounts, congressional and city-council debates, and correspondence between the governing Board of the Metropolitan Police and the military and civilian authorities that shared jurisdiction over the city. Congress established the Metropolitan Police by statute in August 1861, less than four months after the Civil War began, in direct response to the population surge, jurisdictional uncertainty, and disorder that the war had already produced in the capital.

Our key finding is that the Metropolitan Police generated surplus revenue from its first full year of operation, and this fiscal logic not only continued but intensified after the war. Fine revenue nearly doubled from $32,532 in 1862 to $61,944 in 1865—the year the Board first declared the force a net revenue-producing institution, boasting to Congress that there was “probably no other community in our country whose police system produces a net revenue to its finances.” Revenue receded with wartime conditions but remained above the 1862 baseline in 1877, and fine cases rose from 31.9 percent of all arrests in 1862 to a peak of 45.5 percent in 1867, two years after the war ended. The force grew with its revenue: in 1866, Congress authorized a 33 percent increase in its size from 150 to 200 patrolmen. We explain this pattern through two mechanisms. The first is wartime state-building: extending Charles Tilly’s account of how war forges extractive institutions, we show that the Civil War simultaneously created the governance and security crisis that necessitated a new police force and—by exhausting congressional appropriations on military spending—ensured that the force was designed to generate the revenue its own survival required. The second is bureaucratic autonomy: like other nascent administrative agencies, the Metropolitan Police Board had an existential incentive to demonstrate its value to skeptical principals, and it quickly recognized that surplus revenue from fines, forfeitures, and licensing fees was the performance metric most legible and persuasive to Congress and the city councils that controlled its budget—more so than improvements in public safety, which were harder to achieve and measure. The enforcement burden also fell unevenly—across national origin, race, gender, and civil-military status—in ways that shifted during and after the war. Soldiers accounted for more than a quarter of arrests in 1862 but generated no revenue—they were turned over to military authorities rather than fined—and their share declined steadily as the Board came to see such arrests as labor-intensive, fiscally worthless, and a source of friction.

Among civilians, Irish- and German-born immigrants were overrepresented during the war years. We find no clear racial pattern in per-capita arrest rates during the war, but disparities emerge after its end: between 1870 and 1877, Black residents were arrested at 1.4 to 1.6 times the non-Black per-capita rate. Women’s share of arrests rose from 14.2 percent in 1862 to a wartime peak of 22.7 percent in 1865, driven by policing of sex work. These findings relocate the origins of American fiscal policing from the late twentieth century to the 1860s, reveal a Northern and federal pathway that is distinct from Southern institutions previously studied, and provide historical context for contemporary debates over the constitutional limits of fines. More broadly, the Article models what can be gained by studying the United States as a post-conflict society, bringing to American legal history the theories and methods that political scientists have long used to study civil wars and state-building in other countries. 

--Dan Ernst 

LHR 43:2

Law and History Review 43:2 (2025), a special issue, has now been published on-line.  Here is the TOC:

Archives of Sexual Violence in Conflict Zones
Rosemary Byrne, Stephanie McCurry, Jane Ohlmeyer

Women and Sexual Violence in the “1641 Depositions”
Jane Ohlmeyer

Ku Klux Klan Violence and the Problem of Evidence
Stephanie McCurry

Collective Sexual Violence in Turkey, 1894–1924: What we know and how we know it
Benny Morris

Archives of Sexual Violence: Some Testimonies from the Partition of India
Sucheta Mahajan

Women on the Death Railway: A Microhistory of Victimization and Agency
W.L. Cheah

“Hints” of Sexual Violence: What the Akayesu Trial Archive at the International Criminal Tribunal for Rwanda Tells Us About Uncovering Sexual Violence Testimony in Conflict Archives
Rosemary Byrn

--Dan Ernst 

CFP: Violence in the Medieval and Early Modern North

[We have the following CFP.  DRE]

"Violence in the Medieval and Early Modern North."  Aberdeen Medieval and Early Modern North Conference, University of Aberdeen, Scotland

In 1336, a battle took place in the Wars of Scottish Independence in which Edward III of England burnt Aberdeen to the ground. In 1644, the Battle of Aberdeen saw the clash between Covenanter and Royalist forces in the Wars of the Three Kingdoms, with the battle and its aftermath shaking Aberdeen and its denizens. While living memory of these events has faded away, their scars can still faintly be seen. Battles, plague, witch trials and legal cases of domestic abuse have all left their mark on Aberdeen and have shaped the way we view the past. 

Violence in the medieval and early modern world is central to our construction and understanding of the past. Although we have dates and locations, the details of violent enaction are often hazy. Violence, then as now, heavily colours the pages of history, with societal expectations often being enforced through threat of violence. Thus, we propose an exploration of violence for this year's conference, inspecting closely what is considered violence, what is determined as avoiding violence, and who decides the definitions of such things.

We encourage researchers to explore how violence was interpreted, enacted and avoided in the medieval and early modern north. How does the reality of the medieval and early modern world reflect how we view the past? How did Vikings, Knights and Musketeers handle the violence of their occupations? Do we still enact violence on the past as researchers? What were the aftereffects of violence, on the body, on architecture, and on society? From witch trials, war, bizarre medical practices, and natural phenomenon, this conference will investigate the violence of the past. 

We're seeking papers on the topic of violence and its intersections with:

• Memory and Trauma 
• Judicial and Legal Systems
• Literature and Artistic Representations
• Domestic and Public Spheres
• Gender, Race, Class, and Disability Studies
• Military and War Studies
• Religious and Ecclesiastical History
• Histories of Medicine and the Body
• Medievalism and Early Modern Reception
• History of Emotions (e.g. anger, humour etc.)
• Ecocriticism 
• Manuscript Studies and Material Culture 

While we invite papers on all parts of the north, we especially welcome papers on Aberdeen and northern Scotland. The conference will be held on 25-26 May 2026 at the University of Aberdeen, Scotland.  Please email abstracts of no more than 250 words to medievalandearlymodernaberdeen@gmail.com.  Deadline:15 January 2026 @ 23:59(GMT).

Pauline Maier Early American History Seminar

[Here is the schedule of the Pauline Maier Early American History Seminar.  DRE]

Sponsored and hosted by the Massachusetts Historical Society, 1154 Boylston Street, Boston

Seminars begin at 5:00 PM (ET). These sessions bring together a diverse group of scholars and interested members of the public to workshop a pre-circulated paper. Our sessions are free and open to everyone. Register through our online calendar to attend and receive the pre-circulated papers. The Pauline Maier Early American History Seminar steering committee at the MHS includes Profs. Mary Bilder, Katherine Grandjean, Brendan McConville, and Paul Musselwhite. Questions? Contact seminars@masshist.org.

14 October 2025.  Colonial North America in the 17th Century – A Panel Discussion Nathan Braccio, Clark University Elizabeth Hines, Johns Hopkins University Comment: Timo McGregor, Leiden University

2 December 2025.  The Devil Unleashed: The Royal Navy in Boston, 1685 – 1687 Steven Pitt, St. Bonaventure University Comment: Stephen R. Berry, Simmons University

15 January 2026.  Enemies: Treatment and Perception of the Defeated in the American Revolution – A Panel Discussion Susan Brynne Long, University of Delaware Tanner Ogle, Texas A&M University Comment: To Be Announced

3 March 2026. Unruly Convicts, Disorder, and Shifting Moral Responsibility in the British Atlantic Nicole Dressler, The College of William & Mary Comment: To Be Announced

19 March 2026.  “An ASYLUM from TYRANNY”: Slavery and the Anglo-American Politics of Asylum in the Late Eighteenth and Early Nineteenth Centuries Matthew Mason, Brigham Young University Comment: Francois Furstenberg, Johns Hopkins University

14 April 2026. Revisiting the Three-Fifths Compromise – A Panel Discussion Ben Mutschler, Oregon State University Andrew M. Schocket, Bowling Green State University Comment: To Be Announced

Arlyck's "Nation at Sea"

My Georgetown Law colleague Kevin Arlyck has published The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press).  It appears in the series Studies in Legal History, sponsored by the American Society for Legal History.

The Nation at Sea tells a new story about the federal judiciary, and about the early United States itself.  Most accounts of the nation's transformation from infant republic to world power ignore the courts. Their importance, if any, was limited to domestic politics. But the truth is that, in the critical decades following the Constitution's ratification, federal judges decided thousands of maritime cases that profoundly shaped the United States' relations with foreign nations. Judges ruled on the legality of naval captures made by European powers, regulated the conduct of American merchants, and tried pirates and slave traders who sought profit amid the turmoil of transatlantic war. Kevin Arlyck's vivid reconstruction of this forgotten history reveals how, over time, the federal courts helped realize an increasingly bold conception of American sovereignty, one that vindicated the Declaration of Independence's claim to the United States' place 'among the powers of the earth.'

Here are some endorsements:

‘In The Nation at Sea, Kevin Arlyck expertly bridges two significant but often detached areas of scholarship: the early history of the federal courts, a topic typically treated as ‘domestic,’ and the international struggles of the United States in the early national period. The intersection of these topics is of pressing interest to lawyers, judges, legal scholars, and historians, especially given the current prominence of originalist methods of legal interpretation.’

Alison LaCroix - Robert Newton Reid Professor of Law, University of Chicago Law School and author of The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms

‘In the first 40 years after the Constitution was ratified, much of the business of the federal courts consisted of maritime disputes with international dimensions. These disputes made judges central to U.S. foreign relations in ways that are scarcely imaginable today. Arlyck’s compelling and important study is the first major treatment of how federal judges took up this international role and with what consequences.’

Nicholas R. Parrillo - Townsend Professor of Law, Yale Law School and author of Against the Profit Motive: The Salary Revolution in American Government, 1780–1940

  

‘A Nation at Sea argues persuasively that America’s high courts negotiated international conflicts at a crucial period after the founding when the United States needed to establish credibility and assert neutrality in the midst of dangerous conflicts between powerful empires. Arlyck also demonstrates that Supreme Court justices failed to uphold American restrictions on the slave trade after 1808, even though they could have done so through extension of legal doctrines of their own maritime decisions.’

Holly Brewer - Burke Chair of American Cultural and Intellectual History, University of Maryland and author of By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority

--Dan Ernst 

Treaties in the Late Medieval and Early Modern West

New from Oxford University Press: Reframing Treaties in the Late Medieval and Early Modern West, edited by Isabella Lazzarini, Luciano Piffanelli, and Diego Pirillo:

The history of peacemaking has traditionally been reduced to isolated case studies and seen as the prelude to the presumed 'universal' and 'modern' international order. Countering this one-dimensional and Eurocentric narrative, this multi-authored volume reconceptualizes peace treaties as a range of successful and failed agreements, settlements, truces, leagues, and other forms of conflict resolution, thus recovering their multilayered history throughout the medieval and early modern period. Rather than a series of 'great' treaties, peacemaking is reframed as a flexible phenomenon; a 'political grammar', whose complexity is reflected in its variety of forms and sources. Drawing on both diplomatic history and international relations studies, this volume traces the central role that peacemaking has played in the political history of the Western World.

--Dan Ernst.  TOC after the jump.

Kent on the Alien Enemies Act of 1798

 Andrew Kent, Fordham University School of Law, has posted The Alien Enemies Act of 1798:

For the first time since World War II-and the first time ever outside a formally declared war-an American president has invoked the Alien Enemies Act to detain and deport noncitizens. In March 2025, President Donald Trump proclaimed that all members of the Venezuelan gang Tren de Aragua present in the United States are enemy aliens, asserting that their actions, supposedly coordinated with the Maduro government, constitute an "invasion" and "predatory incursion" under the statute's triggering language. Enacted during the Quasi-War with France in 1798, the Act's key terms remain unchanged. This Article is a comprehensive account of the statute's original meaning. 

Every method of statutory interpretation-carefully reading the full 1798 text and examining the Alien Enemies Act's purposes and its political, diplomatic, and military contexts; examining related statutes; understanding background rules of common law and international law (especially those governing alien enemies); and finding definitions of key words in dictionaries and from contemporaneous linguistic usage-confirms that the Trump administration's reading is irreconcilable with the statute's original meaning in 1798. "Alien enemy" status required a state of war or an imminent threat thereof. The Act was intentionally written to bar the president from declaring alien enemy status in other situations. The statute's triggers were understood to be met when a foreign nation's offensive military actions indisputably created a state of actual or imminent armed attack on U.S. territory, or when Congress acted to formally authorize a state of war, consistent with Congress's view that it, not the president, had power under the Constitution to declare war and authorize more limited hostilities. 

Furthermore, the historical record strongly suggests that individuals detained under the Act could seek judicial review of whether they were, in fact and law, alien enemies-contrary to claims of the Trump administration. Finally, this Article analyzes other provisions of the statute not implicated in 2025 and situates the Act within its broader context-fierce partisan battles between Federalists and Republicans over immigration, loyalty, national character, federal power, and foreign policy. 

--Dan Ernst 

Bainbridge on NY's Act to Encourage Privateering

Stephen M. Bainbridge, UCLA School of Law, has posted The Law and Economics of An Act to Encourage Privateering Associations:

New York Colonial Privateers (NYPL)

This article examines New York's 1814 Act to Encourage Privateering Associations, the second general incorporation statute in U.S. history and a unique example of early industrial policy designed to facilitate private maritime warfare. The article situates the 1814 Act within the broader context of the War of 1812, examining the costs, risks, and organizational challenges that made both the privateering business and incorporation of that business attractive to potential investors. This early experiment in using incorporation to advance public policy objectives through private initiative offers valuable insights into both the historical development of American corporate law and the relationship between legal innovation and economic development in the early Republic.

Through detailed analysis of the Act's provisions and historical context, this study advances three principal arguments. First, it demonstrates that early general incorporation statutes functioned as deliberate instruments of industrial policy rather than neutral procedural mechanisms, with the 1814 Act representing a novel state effort to harness private capital for national defense. Second, it provides insight into the contested evolution of essential corporate attributes by analyzing which features of the modern corporation the Act provided and which it omitted, contributing to ongoing scholarly debates about the truly indispensable characteristics of the corporate form. The statute's design reveals contemporary understanding of how corporate privileges could encourage high-risk entrepreneurial ventures by providing limited liability, centralized management, and rudimentary asset partitioning. Third, it offers a case study of how economic necessity can drive the functional development of corporate features—particularly asset partitioning and limited liability—even when formal legal architecture remains incomplete.

Professor Bainbridge discusses the paper in this blog post.

–Dan Ernst

Levin Center on Congressional Oversight of the War on Terror

[We have the following announcement from the Levin Center for Oversight and Democracy of the Wayne State University Law School.  DRE.]

Today, the Levin Center for Oversight and Democracy, with the support of the U.S. Capitol Historical

Society, is releasing a new Portrait in Oversight describing two in-depth Senate investigations into the torture and mistreatment of individuals in U.S. custody during the wars in Iraq and Afghanistan.

Both oversight investigations – the first by the Senate Armed Services Committee from 2004 to 2009, and the second by the Senate Select Committee on Intelligence from 2007 to 2014 -- collected evidence exposing the role of senior U.S. defense and intelligence officials in devising, approving, and directing the use of brutal interrogation methods on Abu Ghraib and Guantanamo Bay detainees. Both Senate investigations also led to enactment of new laws to prohibit the future abuse of individuals in U.S. custody.

“The explosive release of 2004 photos showing prisoners being tortured at Abu Ghraib Prison in Iraq shocked the American public and led to worldwide condemnation of U.S. brutality,” said Jim Townsend, director of the Levin Center. “This new Portrait in Oversight demonstrates how Congress exposed government misconduct, held U.S. military and intelligence officials accountable for what they did, and paved the way for laws to prevent this shameful history from repeating itself.”

“Checks and balances are the foundation of the American governmental system," said Jane L. Campbell, President & CEO of the U.S. Capitol Historical Society.  "It's therefore vital to the health of our democracy that Congress continues to exert its power of oversight on our co-equal branches of government. The U.S. Capitol Historical Society thus commends the work of the Levin Center to inform Americans of the history of this vital process, including the aftermath of the September 11 terrorist attacks.”

The portrait is being released today in observance of the 16th anniversary of the Senate Armed Services Committee’s action on November 20, 2008, approving a 265-page report detailing how senior U.S. Department of Defense officials ordered abusive interrogation methods to be used on U.S. detainees. Six years later, on December 9, 2014, the Senate Select Committee on Intelligence released to the public a 700-page executive summary of its still classified report on the role of the Central Intelligence Agency in the misconduct.

Blackhawk on American Indians and Japanese Internment

Maggie Blackhawk, New York University School of Law, has posted The Crisis in Colonial Administration: American Indians and Japanese Internment, which is forthcoming in the American Historical Review:

On March 24, 1943, Acting Secretary of the Department of the Interior, Abraham “Abe” Fortas, and Director of the War Relocation Authority (WRA), Dillon Myer, agreed to repurpose a former Indian boarding school into the primary prison for camps that interned over a hundred thousand individuals “of Japanese ancestry” during World War II.  Built in 1909 on the homelands of the Navajo Nation and only recently closed to students, the Leupp Training School offered the WRA a foundation upon which to construct a prison for the “aggravated troublemakers” in the ten internment camps.  These “aggravated troublemakers” were largely dissidents—individuals who challenged their detention and forced loyalty oaths through collective action like strikes and other uprisings; these individuals were imprisoned at Leupp without charges or trial, and some were transported to the prison in “coffin-like” four-foot-by-six-foot wooden boxes with a single air hole that only narrowly prevented suffocation during the thirteen-hour trip.

Located 30 miles away from its nearest town of Winslow, Arizona (population ca. 4,500), the Leupp Isolation Center imprisoned approximately 80 of the circa 120,000 Japanese and Japanese Americans detained by the United States—seemingly yet another drop of injustice in a wave of “morally repugnant” policy.  But the Leupp Isolation Center provides a particularly paradigmatic example of the central role of American colonialism in facilitating Japanese internment.  Few scholars to date have drawn connections between American colonialism, Native nations, and Japanese internment.  Even fewer scholars have unearthed the direct, enduring, and broad relationship between the federal government’s efforts to colonize Native people and its efforts to intern people of Japanese ancestry.  Initially, all ten Japanese relocation centers were sited to be built on Indian reservations, and Commissioner of Indian Affairs, John Collier, campaigned to head the project he described as “colonization of the Japanese,” including the administration of all camps he termed “colonies.”  Disputes over how much self-determination to foster at the camps disrupted those initial plans, however, and the agency created to oversee Japanese internment, the War Relocation Authority, cobbled together seasoned colonial administrators from the Indian Service and another, more top-down, colonial administration agency, the Soil Conservation Service.    

This Essay explores how the administrative agencies and actors who built and maintained American colonial projects across Indian Country turned these same tools toward the detention, internment, and incarceration of individuals with Japanese ancestry.  This history is necessarily one of administration—it finds continuities between federal administrative institutions, their officials, and the legal justifications they offered (or did not) in accomplishing their aims.  Disputes between administrative officials over how best to colonize Indian Country spilled over into disputes over how best to intern Japanese Americans and Japanese nationals.  These disputes, in turn, then impacted federal policy for Indian Country as these officials returned to the Indian Service following closure of the internment camps.  This history is a history of American colonialism writ large. It reveals the ways that the American colonial project was not tethered to particular populations (Indians) or contexts (Indian Country) but was instead an effort to build infrastructure—legal, constitutional, technological, bureaucratic—to govern a range of populations.

--Dan Ernst

Batlan on Antisemitism and the Displaced Persons Act

Felice Batlan, Chicago-Kent College of Law, has posted The 1948 Displaced Persons Act and Home-Grown Antisemitism:

This Article examines the 1948 Displaced Persons Act which provided for the ability of certain European refugees to immigrate to the United States following World War II. The 1948 Act discriminated against Jewish survivors of the Holocaust and imprinted Nazi racial laws and ideology upon U.S. law. Moreover, in debates over passage of such a law, a vast amount of overt antisemitism emerged, generated by politicians and ordinary citizens, which went well beyond the question of the admission of refugees to the United States. By examining the complex and transnational events leading up to the 1948 Displaced Persons Act, and drawing upon underutilized archival material, this Article helps to uncover and explain antisemitism in the immediate post-war period. This analysis has substantial implications for how we think about the history of antisemitism and its relationship to law in the United States.

--Dan Ernst

AJLH 64:1

American Journal of Legal History 64:1 (March 2024) is now published online.

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States
Angus Harwood Brown

Alexander Hamilton’s Constitutional Jurisprudence and the Bank Bill
Peter Charles Hoffer

Letter Writing and Legal Consciousness during World War I
Elizabeth A Hoffmann

Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England
Nicholas Sinanis

A Turbid River of History and Law: The Procurement of Women in Imperial Japan and Colonial Korea
Marie Seong-Hak Kim

--Dan Ernst

Amann on the Woman Acquitted at Nuremberg

Diane Marie Amann, University of Georgia School of Law, has posted Inge Viermetz, Woman Acquitted at Nuremberg:

Inge Viermetz (wiki)

Conventional narratives tend to represent the post-World War II international criminal proceedings as a men’s project, thus obscuring the many women who participated, as lawyers, journalists, analysts, interpreters, witnesses, and defendants. Indeed, two women stood trial before Nuremberg Military Tribunals. This article examines the case of the only woman found not-guilty: Inge Viermetz, who had been an administrator at Lebensborn, the Nazi SS adoption and placement agency. The article outlines the prosecution’s child-taking case against Viermetz, as well as her successful gendered self-portrayal as a conventionally feminine caregiver. With references to Professor Megan A. Fairlie, at whose memorial symposium it was presented, the article concludes by considering contemporary implications of this acquittal at Nuremberg.

--Dan Ernst

Weekend Roundup

• Slate's Amicus podcast (hosted by Dahlia Lithwick) is doing a series on originalism. The first episode in the series is here ("How Originalism Ate the Law: The Trick"). 

• The Death Panel podcast has released a conversation with Karen Tani (University of Pennsylvania) and Katie Eyer (Rutgers Law) on their article "Disability and the Ongoing Federalism Revolution," Yale Law Journal (2024). The episode is currently available to patrons only, but will eventually be "unlocked."

• Welcome to the blogosphere to Legal History Insights, moderated by Thomas Duve, on th doings of the department on Historical Regimes of Normativity at the Max Planck Institute for Legal History and Legal Theory!
  

• Boston College Law School has launched the website Black History at BC Law “to honor, document, and celebrate the rich history of contributions from Black BC Law community members as student leaders, educators, academics, judges, activists, litigators, transactional attorneys, and visionaries."  More.

• Radcliffe Institute for Advanced Studies has announced its 2024-2025 Fellows.  They include Myisha S. Eatmon for “to complete a book on black Americans’ use of tort law to seek justice during the Jim Crow era, and to begin a second project on the legal relationship between black Americans and American Jews during Jim Crow and the Holocaust"; Daphna Renan and Nikolas Bowie, for a book “that contests judicial supremacy ...  and recovers a tradition rooted in abolitionism that allows the American people to define the Constitution democratically”; and Laura Weinrib, for “a book on labor unions, corporations, and money’s role in politics in the United States.”
  

• Claire Potter interviews Paul Sabin, Yale University, about his book, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism (Political Junkie).
  

• "More than 200 people attended a special community celebration on Saturday, April 27, commemorating the sesquicentennial (150th) anniversary of the construction of Aliʻiōlani Hale, home of the Hawaiʻi Supreme Court." More. H/t Michael Banerjee 
  

• 
  The U.S. Capitol Historical Society will host a Native American Suffrage Symposium on Thursday, May 23, "to commemorate the 100th anniversary of the Indian Citizenship Act of 1924.”
  

• Legal historians were among the political historians and political scientists at the conference, How the New Deal Was Run, held last weekend at Vanderbilt University.  Kevin Kruse's brief notice of the conference is here. 
  

• New online in the AJLH:  Letter Writing and Legal Consciousness during World War I, by Elizabeth A. Hoffmann.  It "explores how ordinary Americans thought about law during World War I by examining 119 letters to Congress regarding charges under the Espionage Act.”

• New journal alert: "Early Medieval England and its Neighbours is an open access, interdisciplinary journal dedicated to new research on England, its closest geographic and intellectual neighbours, and their wider cultural contacts from the 5th to the 11th century." 
  

• Lawbook Exchange’s May 2024 catalogue.

• ICYMI: Yesterday the Supreme Court of Tasmania turned 200.  Ralph Richard Banks, Standford Law, asks, Brown v. Board: Success or Failure?  Should tikanga Māori be taught in New Zealand's law schools? (Re:). Patrick O'Donnell on Law and Psychoanalysis.
  

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

Littlewood and Burch on the Cold War Plan to Tax after a Nuclear Attack

It turns out taxes were more certain than death.  Michael Littlewood, University of Auckland Faculty of Law, and Micah Burch, The University of Sydney Faculty of Law, have posted The U.S. Government’s 1967 Plan for the Survival of the Tax System in the Event of a Nuclear Attack, which is forthcoming in the Virginia Tax Review:

In 1967 the U.S. Government produced a plan (the Proposal) designed to ensure the continued operation of the federal tax system in the event of “a major nuclear attack.” The assumptions on which the Proposal was based were horrific: they included that the number of casualties in the United States might number 100 million; that 50% of the country’s real estate might be destroyed; and that its economy might be even more seriously disrupted than those figures suggest. The Proposal produced in 1967 seems to be the first of its kind. Presumably more recent plans have been formulated, but it seems that almost no information about them has been made public.

This article examines the 1967 plan and the thinking behind it. This is worthwhile for three main reasons. First, the formulation of the Proposal is itself a significant event in the twentieth century history of the United States, but almost nothing has been published about it. Secondly, an examination of the Proposal and the relations between the men who devised it provides novel insights into the manner in which the nation was governed in the 1960s, and of the extent to which the Soviet threat lay like a cloud over all aspects of the government’s decision making. Thirdly, although the Soviet Union has dissolved, the threat of nuclear attack has not. The 1967 plan would seem to be the obvious starting point, therefore, for anyone considering what the government’s current plans are — or should be.

--Dan Ernst

Donoghue's "Prisoners of Congress"

Norman E. Donoghue II, has posted Prisoners of Congress: Philadelphia's Quakers in Exile, 1777–1778 (Penn State University Press):

In 1777, Congress labeled Quakers who would not take up arms in support of the War of Independence as “the most Dangerous Enemies America knows” and ordered Pennsylvania and Delaware to apprehend them. In response, Keystone State officials sent twenty men—seventeen of whom were Quakers—into exile, banishing them to Virginia, where they were held for a year.

Prisoners of Congress reconstructs this moment in American history through the experiences of four families: the Drinkers, the Fishers, the Pembertons, and the Gilpins. Identifying them as the new nation’s first political prisoners, Norman E. Donoghue II relates how the Quakers, once the preeminent power in Pennsylvania and an integral constituency of the colonies and early republic, came to be reviled by patriots who saw refusal to fight the English as borderline sedition.

Surprising, vital, and vividly told, this narrative of political and literal warfare waged by the United States against a pacifist religious group during the Revolutionary War era sheds new light on an essential aspect of American history. It will appeal to anyone interested in learning more about the nation’s founding.

--Dan Ernst

Surrency and Burbank Prizes to Smiley

In this post, we'll note two prizes awarded at last month's annual meeting of the American Society for Legal History.  The Surrency Prize, awarded annually for the best article published in the Law and History Review, went to Will Smiley, “Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions,” Law and History Review 40:2 (2022): 229-259.  Here is the citation:

Will Smiley

Will Smiley’s “Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions” features deep research in multi-lingual, multi-national archives, erudite analysis, and compelling story-telling. This article connects the histories of the Ottoman Empire, Islamic law, and the global Age of Revolutions. Smiley examines how the Ottoman Sublime Porte in Istanbul used the Islamic law tradition to craft a law of rebellion that was useful to fighting foreign enemies and suppressing domestic dissenters. Islamic law both facilitated military power and constrained the actions of political administrators who were beholden to clerics, a Muslim public, and their own religious beliefs. Ultimately, the Porte forged a law of rebellion that justified retribution against those who resisted the Sultan’s authority, while simultaneously denying these rebels’ sovereignty. Smiley shows how this legal duality, positioning rebels as at once subject to a political power’s jurisdiction and belligerent outsiders, echoed across the Atlantic. Similar legal moves shaped Britain’s treatment of Greece, the Lieber Code, and the United States’ response to the confederacy. Smiley’s exploration of how the rule of law shaped empire, war, and rebellion holds both historical and contemporary insight.

Honorable Mention went to Alexandre Pelegrino, “From Slaves to I´ndios: Empire, Slavery, and Race (Maranha~o, Brazil, c.1740–90),” Law and History Review 40:4 (2022): 789-815.

The second prize we note here is the Jane Burbank Global Legal History Prize.  It also went to Will Smiley, “Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions,” Law and History Review 40:2 (2022): 229-259, with a citation:

Smiley’s elegant article assesses the global significance of the Ottoman government’s treatment of rebellious subjects as enemies at the turn of the nineteenth century. Although they lived within imperial territories and were claimed as subjects of the sultan, the Ottoman Porte began to define non-Muslim rebels as enemies under Islamic law. The move subjected rebels to extreme violence, including legal enslavement. Smiley assesses how this policy came about and places it in a global and comparative context. The result is a powerful argument about the imperial roots of an emerging international legal doctrine recognizing rebels as enemies but not bona fide belligerents.

Smiley recounts how Islamic jurisprudence informed the Ottoman Porte’s reactions to rebellions in Moldavid and Serbia. He labels the new classification of rebels as “dual sovereignty,” that is, placement outside the empire under Islamic law but inside it under international law. In Greece, the article shows, rebellious subjects were enslaved as enemies while the Ottomans also sought to block other empires from intervening inside Ottoman imperial territory. Other iterations of dual sovereignty, meanwhile, found adherents in Europe and the United States, also in connection with the legal status of rebels. During the US Civil War, the Lieber Code established the possibility of treating rebels as enemies without recognizing them as bona fide belligerents. Smiley pushes still further to reflect on the unexpected consequences of this legal approach. In the Ottoman empire, he suggests, the turn to Islamic law to justify enslavement of rebels placed unintended limits on state action.

As this summary shows, Smiley’s article contributes to the legal history of the Ottoman Empire, the history of Islamic law, and the history of international law. Committee members were impressed by the quality and range of the research, the subtleties of the analysis, and the clarity of the writing. The article models how to move artfully between local and global contexts.

Two Honorable Mentions were also announced.  One went to the runner-up for the Surrency Prize: Alexandre Pelegrino, “From Slaves to I´ndios: Empire, Slavery, and Race (Maranha~o, Brazil, c.1740–90),” Law and History Review 40:4 (2022): 789-815.  The other went to Juandrea Bates, “Unaccompanied Minors and Fraudulent Fathers: Civil Law in the Unmaking of Immigrant Family in Buenos Aires, 1869–1920,” Hispanic American Historical Review 102:1 (2022): 95-126.

Federal History 2023

The 2023 issue of Federal History has been published on-line.  Here’s the TOC:

Roger R. Trask Lecture: What Federal Historians Do
Edward C. Keefer

The Policy Which Put Down the War Shall Settle the Result”: Loyalty, Race, and the Reconstruction of Missouri
Jeremy Neely

The Budget Bureau’s Administrative Doctrine and the Creation of an Independent NASA, 1958
William F. Finan III

The HBCU Revolution:  Desegregation, Disintegration, Collaboration, and Jimmy Carter’s 1980 Decision to Give Black Colleges Their Own White House Office
Cheryl E. Mango

Robert Byrd and the Iraq War: A Case Study of Senatorial Power
Lori Maguire

An Interview with Michael A. Olivas
Benjamin Guterman

Roundtable: The Deportation Machine: America’s Long History of Expelling Immigrants
Introduction by Maddalena Marinari.  Reviews by Eladio B. Bobadilla, Amanda Frost, Deborah Kang, and Yael Schacher.  Author’s Response by Adam Goodman

Reviews in Legal History

--Dan Ernst

Weekend Roundup

• The Federal Judicial Center is seeking applications for Assistant Division Director for Judicial and Legal Education.
  

• Samantha Barbas, University at Buffalo School of Law, is interviewed about Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (University of California Press, 2023) (Current).
  

• We received a CFP for “Legal Infrastructures of Democracy. Legal Fields, Public Spheres, and the Twin Challenges of State and Market.”  The workshop will take place in Frankfurt on September 7-8.

• From the Washington Post's "Made by History" section: Carly Goodman, "We’ve erased Black immigrants from our story, obscuring a racist system"; John Gleb (University of Texas at Austin), "Anti-Asian bigotry is behind a Texas land bill"; and more.

• From Environment, Law, and History: David Schorr's series of posts on "Nature and the Common Law" continues, here and here.

• At Balkinization, Mary Dudziak (Emory Law) has posted part one of what looks like a series of posts on the "Forever War Chronicles": "How, exactly, did Truman decide not to seek a war declaration for the Korean War?"
  

• Also at Balkinization: posts have started going up for the symposium on Joanna Schwartz's new book Shielded: How the Police Became Untouchable (Viking, 2023).

• New online from the American Journal of Legal History and Oxford Academic: O’Connor v Donaldson (1975): Legal Challenges, Psychiatric Authority, and the Dangerousness Problem in Deinstitutionalization, by Laura Hirshbein.
  

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

Steilen on the Steel Seizure Case

Matthew J. Steilen, SUNY at Buffalo Law School, has posted Life and Afterlife in the Steel Seizure Case, which is forthcoming in the Buffalo Law Review:

Robert H. Jackson (LC)

This Essay examines the proper role of the Supreme Court in deciding disputes between Congress and the President. Progressive commentators have recently argued that the Court ought to dismiss these cases as political questions, at least where doing so would give effect to congressional regulations of the President. The Court's interference is criticized as anti-democratic. The Essay advances a different conception of the Supreme Court's role by examining the famous Steel Seizure Case. In that case, the Court upheld an injunction barring President Truman from seizing the nation's steel mills, on grounds that doing so conflicted with a federal statute. The subsequent embrace of Justice Jackson's concurrence shows how Supreme Court decisions can guide the political resolution of disputes between Congress and the President. In its "afterlife"--its use by members of Congress, Executive Branch lawyers, and in later litigation--Jackson's concurrence has acquired a kind of democratic authority. It was quoted in legislative debates preceding the passage of the War Powers Resolution, the National Emergencies Act, and the Presidential Recordings Act, among other statutes. Justice Jackson’s broad, theoretical language and flexible framework proved useful to representatives. By constructing his concurrence this way, Jackson helped give it an afterlife and an essential place in structuring the political maintenance of our Constitution's separation of powers.

--Dan Ernst