Sir John Baker to Deliver Hamlyn Lectures

We’ve received word that Professor Sir John Baker, Q.C., LL.B., Ph.D. (Lond.), M.A., LL.D. (Cantab.), Hon. LL.D. (Chicago), F.B.A.; Downing Professor Emeritus of the Laws of England in the University of Cambridge, will deliver the Hamlyn lectures for 2019, three public lectures on “English Law under two Elizabeths.” 

Lecture 1: English Law under Elizabeth I
    Date: Tuesday 19 November 2019, 17:00-18:00  Drinks reception 18:00
    Venue: University of Cambridge-LG18, The Sir David Williams Building, 10 West Road, Cambridge CB3 9DZ
    Chair: Professor David Ibbetson, President of Clare Hall, University of Cambridge
    Booking: here.

Lecture 2: The Age of Common Law and the Age of Statute
    Date: Thursday 21 November 2019, 18:00-19:00 Drinks reception: 17:00
    Venue: University of Reading-Palmer Building 1.09, Whiteknights Campus, Reading RG6 6UR
    Chair: Dr Ian Williams, Faculty of Laws, University College London
    Booking: c.l.smith@reading.ac.uk

Lecture 3: The Elizabethan Inheritance
    Date: Thursday 28 November 2019, 18:00-19:00
    Venue: Chancellor’s Hall, Senate House, University of London, WC1E 7HU
    Chair: The Rt Hon the Lord Judge
    Booking: here.

--Dan Ernst

A Symposium on James Wilson

The contributions to “The Life and Career of Justice James Wilson,” the Fourth Annual Salmon P. Chase Faculty Colloquium of the Georgetown Center for the Constitution, has been published in volume 17 of the Georgetown Journal of Law and Public Policy.  The first contribution is “James Wilson and the American Founding,” by William Ewald, who, in conjunction with the symposium, delivered the Fourth Annual Salmon P. Chase Distinguished Lecture at the U.S. Supreme Court, an event co-hosted by the Georgetown Center for the Constitution and the Supreme Court Historical Society.  The other contributions are Michael W. McConnell, “James Wilson's Contributions to the Construction of Article II”; Christopher S. Yoo, “James Wilson as the Architect of the American Presidency”; John Mikhail. “James Wilson, Early American Land Companies, and the Original Meaning of ‘Ex Post Facto Law’”; Maeva Marcus, “Wilson as a Justice”; Eric Nelson. “James Wilson and the Ancient Constitution”; and Danielle Allen and Emily Sneff, “Golden Letters: James Wilson, the Declaration of Independence, and the Sussex Declaration.”

--Dan Ernst

Roy Chaudhury on the Indian Poisons Act

Out soon by Shrimoy Roy Chaudhury, Shiv Nadar University (India) is "Toxic Matters: Medical Jurisprudence and the Making of the Indian Poisons Act (1904)" in Crime, History & Societies/Crime, Histoire & Sociétés 22:1 (2018), 81-105. Here's the abstract: 

The article seeks to problematize the relationship between law and medicine by studying the tensions which accompanied the emergence of medical jurisprudence in British India during the second half of the nineteenth century. In a context of British government apprehension as to the legality of its rule in India, the article focuses on official concerns about the unmonitored circulation of toxic substances, particularly arsenic, which culminated in the Poisons Act (1904). The article investigates the role of toxic substances in historical narratives of expertise, and also traces the emergence of the idea of an autonomous native society in colonial and medical/forensic discourse, locating its articulation in exchanges between British and native salaried experts.

Further information is available here.

--Mitra Sharafi 

Manners to Present in BC Legal History Roundtable

[We have the following announcement from our friends at Boston College.]

We invite you to join us on Thursday, March 15, at 4:30 in the Rare Book Room for our first event of the spring semester of the BC Legal History Roundtable 2018-2019.  

Our guest will be Jane Manners, Bernard and Irene Schwartz Fellow, New-York Historical Society. She will be presenting a paper, Individualized Lawmaking and the Problem of Legislative Discretion.  The paper is available on the Roundtable website.  (Instructions for accessing the paper are in the final paragraph of the website introduction.)

Private bills. Special legislation. Monopoly grants. Equitable consideration. Claims. Petitions. Memorials. All terms relate to the nineteenth century American practice of individualized lawmaking, in which lawmakers regularly heard and responded to individual appeals for legislative intervention — for favors, exceptions, special treatment. Historians and other scholars who have investigated such individuated lawmaking have done so largely as a work of recovery, emphasizing the discordance of the practice to our modern ears to unsettle our contemporary constitutional understanding. If we accept the universal applicability of legislation as fundamental to the rule of law, these scholars ask, how can we make sense of this earlier institutional arrangement? These scholars have examined in illuminating detail both the conception of the legislative role underlying the practice as well as the process by which the United States, at both the federal and state levels, gradually abandoned it, shifting the consideration of individual cases out of the legislature and into the executive and judicial branches.

What these scholars have paid less attention to, however, is the reason the shift occurred. Generally, treatments of nineteenth-century individuated lawmaking explain the gradual abandonment of the practice as either the natural and inevitable result of concerns for efficiency and fairness or the product of partisan politics. Generally, too, histories of the practice, whether approving or disapproving, treat its various labels as interchangeable — all references to the same forgotten legislative modus operandi. This essay seeks to complicate both assumptions. It argues that more than efficiency, fairness, and partisan politics were at stake, and that by digging into the subtle differences in meaning among the practice's terms, we find a nation still in the process of working out its theories of legislation and of government, and still struggling to balance a concern for individual rights and for individuated lawmaking with a commitment to the public good.

Jane Manners studies US legal history, with a focus on American legal institutions, legislation, federalism, and local government law. During the 2018-19 academic year she is a Bernard and Irene Schwartz Fellow at the New-York Historical Society. She received her PhD in history from Princeton in 2018 and her JD and BA from Harvard. Her work has been supported by the American Council on Learned Societies, the American Society for Legal History, the American Historical Association, and the Hurst Institute at the University of Wisconsin Law School. Between college and law school, Jane worked as a teacher, a journalist, a philanthropic grant maker, and a presidential campaign staffer.

Refreshments are available beginning at 4:15 pm. outside the Library Conference Room.

NHC Briefing: How Congress Reforms Itself

The National History Center has announced a briefing on How Congress Reforms Itself: Historical Perspectives on Rules Changes, Wednesday, February 6, 2019 from 10:00-11:00 am, Cannon House Office Building, Room 122:

As recent changes in the Senate's filibuster rule have shown, the rules that govern the two bodies of Congress are not fixed: they have repeatedly undergone revision and reform.  What has brought about major rules changes in the past?  How have these changes altered how Congress works?  What unintended consequences have they caused?  Leading historians of Congress will discuss these questions.

Speakers: Matthew Wasniewski, Historian, US House of Representatives; Daniel S. Holt, U.S. Senate Historical Office; John Lawrence, University of California Washington Center.  Moderator: Michele Swers, Georgetown University.

California Legislative History Digitized

[We're grateful to Joanna Grisinger for drawing this announcement to our attention.]

Thousands of Historical California Legislative Publications Digitized and Openly Available Online Paul Fogel, Manager & Technical Lead, Mass Digitization, California Digital Library

California historical legislative research just got a bit easier. As a result of a collaboration between the California Office of Legislative Counsel and librarians at the University of California, Stanford University and the California State Library, nearly 4,000 California Assembly and Senate publications are now online and have been opened for reading access to everyone worldwide. They are available in the HathiTrust Digital Library as a featured collection, as well as individually in Google Books.

The project was initiated at the University of California's California Digital Library (CDL) by current HathiTrust Program Officer for Federal Documents and Collections Heather Christenson.  CDL worked with California's Office of Legislative Counsel to clarify language in recently approved California Assembly Bill no. 884 to confirm that the collected set of historical publications of California legislative output are indeed in the public domain and can be broadly shared.  The recently opened volumes were digitized as part of the Google Books project from copies collected by UC Berkeley and many other university libraries and have been aggregated in the HathiTrust Digital Library, a partnership of over 140 academic and research libraries

[More.]

Peterson on Statutory Interpretation in the Early Republic

James Kent (NYPL)

Farah Peterson, University of Virginia School of Law, has posted Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation, which appears in the Maryland Law Review 77 (2018): 712-773.  Here’s the abstract: “In the Early Republic, American judges acted as collaborators with state legislatures. They took on interpretive powers that blurred the line modern scholars expect to find between the legislative and judicial branches of government.”

Parise on ownership in American Civil Law jurisdictions

Agustín Parise, Maastricht University, has published Ownership Paradigms in American Civil Law Jurisdictions: Manifestations of the Shifts in the Legislation of Louisiana, Chile, and Argentina (16th-20th centuries) with Brill. From the publisher: 

In Ownership Paradigms in American Civil Law Jurisdictions, Agustín Parise assists in identifying the transformations experienced in the legislation dealing with ownership in the Americas, thereby showing that current understandings are not uncontested dogmas.  

This book is the result of research undertaken on both sides of the Atlantic, and covers the 16th to 20th centuries. Agustín Parise offers readers a journey across time and space, by studying three American civil law jurisdictions in three successive time periods. His book first highlights the added value that comparative legal historical studies may bring to Europe and the Americas. It then addresses, in chronological order, the three ownership paradigms (i.e., Allocation, Liberal, and Social Function) that he claims have developed in the Americas.

Full Contents after the break:

Maxeiner's "Failure of American Methods of Lawmaking"

James R. Maxeiner, University of Baltimore, has posted Failures of American Methods of Lawmaking in Historical and Comparative Perspectives, with the Cambridge University Press:

In this book, James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and would be a solution for the American legal system as well.

In an abstract, posted with the book’s front matter on SSRN, Professor Maxeiner elaborates:

America’s eighteenth-century founders expected that the people of the United States would establish a wise and happy government of written laws adopted with a single eye to reason and the good of those governed. Few Americans today would say that America’s lawmaking fulfills the founders’ expectations. Dysfunctional is the word that many Americans use to describe their methods of lawmaking. The legal professions tell the American people that they are doing the best the can. They tell a myth of common law. They say the people should rejoice, and not complain, when America’s judges make law, for such lawmaking makes America’s laws exceptional. It is how America has always made law, they say. Judges make better laws than legislatures, they claim.

The historical part of this book explodes the common law myth of dominance of judge-made law in American history. Using sources hardly accessible until 21st century digitization, it shows that statutes have had a much greater role in American law than the legal professions acknowledge.

The comparative part of this book dismantles the claim that judges make better law then legislatures. It shows how the methods of American legislative lawmaking, owing to neglect, have failed to keep up with their counterparts abroad, and have thus denied the people the government of laws that the founders expected.

This book shows how such a system works in Germany and would be a solution for the American legal system as well

TOC after the jump.

Cairns on Legal Transplants

Back in 2015, John W. Cairns, University of Edinburgh, published Codification, Transplants and History: Law Reform in Louisiana (1808) and Quebec (1866) with Talbot Publishing. From the press:

When Louisiana enacted its Digest of the Civil Laws in 1808 and Quebec its Civil Code of Lower Canada in 1866, both jurisdictions were in a period of transition - economic, social and political. In both, the laws had originally been transplanted from European nations whose societies were in many ways different from theirs. This book offers the first systematic and detailed exploration of the two new codes in light of social and legal change. Cairns examines the rich, complex, and varying legal cultures -- French, Spanish, Civilian and Anglo-American -- on which the two sets of redactors drew in drafting their codes. He places this examination in the context surrounding each codification, and the legal history of both societies. Cairns offers a detailed analysis of family law and employment in the two codes, showing how their respective redactors selected from a defined range of sources and materials to construct their codes. He shows that they acted relatively freely, attempting to inscribe into law rules reflecting what they understood to be the needs of their society from an essentially intuitive and elite perspective. While not propounding a universal theory of legal development, Cairns nonetheless shows the types of factors likely to influence legal change more generally.

Further information is available here.

McNairn on Deliberative Democracy in Upper Canada

Jeffrey L. McNairn, Queen’s University published The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791-1854 with the University of Toronto Press in 2016. From the publisher:

By the mid-nineteenth-century, "public opinion" emerged as a new form of authority in Upper Canada. Contemporaries came to believe that the best answer to common questions arose from deliberation among private individuals. Older conceptions of government, sociability and the relationship between knowledge and power were jettisoned for a new image of Upper Canada as a deliberative democracy. 

The Capacity to Judge asks what made widespread public debate about common issues possible; why it came to be seen as desirable, even essential; and how it was integrated into Upper Canada's constitutional and social self-image. Drawing on an international body of literature indebted to Jürgen Habermas and based on extensive research in period newspapers, Jeffrey L. McNairn argues that voluntary associations and the press created a reading public capable of reasoning on matters of state, and that the dynamics of political conflict invested that public with final authority. He traces how contemporaries grappled with the consequences as they scrutinized parliamentary, republican and radical options for institutionalizing public opinion. The Capacity to Judge concludes with a case study of deliberative democracy in action that serves as a sustained defense of the type of intellectual history the book as a whole exemplifies.

You can read more about the book here.