Who are the "We"?

In my last post, I discussed my approach to the Bracton treatise in Priests of the Law. I am interested in Bracton primarily for what it can tell us about the justices who wrote it and how they thought about their work in the English royal courts of the thirteenth century. Bracton presents us with a particular view of the royal justice and what he is, not so much through what it says, but in how it says it. Very close to the beginning of the treatise, one of the authors tells us that “law (ius).. is called the art of what is fair and just, of which we are deservedly called the priests, for we worship justice and administer sacred rights.” There is an interesting assumption built into this sentence: the “we” seems to assume that both the author and the reader are part of some group with a shared identity. But the author does not explicitly define that group in this passage. Who did he mean to include in that “we”? There were professional or at least semi-professional lawyers working in the king’s courts in between the 1220s and the 1250s. This is the period when we start to see the conturs or narratores, the lawyers who made oral arguments on behalf of clients in court (roughly equivalent in function to modern English barristers) coalesce into a recognizable professional group. We start to see professional or semi-professional attorneys, who handled the procedural aspects of litigation, around the same time. You would never know this from the Bracton treatise. The justices who wrote Bracton must have been familiar with the conturs, who they would have encountered regularly in their work, but they chose not to address them. The treatise does address the problems of judging and the concerns of the justices and clerks of the royal courts. In this period, service as a judicial clerk was often a path to the judicial bench. The authors of the treatise themselves had followed that path. Henry of Bratton, from whom Bracton takes its name, served as a clerk to William of Raleigh. William of Raleigh, probably the primary author of the treatise, served as a clerk to Martin of Pattishall. Martin of Pattishall, who may have begun work on the treatise, was clerk to Simon of Pattishall. In writing the treatise for justices and clerks, the authors of the treatise wrote it for people who were just like them.

It would seem that the Bracton authors defined that “we” in a fairly narrow way. The justices and clerks of the royal courts were, altogether, a few dozen people. In imagining the ideal reader of the treatise, the authors excluded large groups of people who worked with law. Judging by the way they wrote the treatise, in a scholastic Latin that assumes quite a bit of knowledge of Roman law, that “we” looks even narrower, as it would have required a particular type of education, one not necessarily shared even by all of the justices and clerks, to fully understand it. The authors appear to have thought of this treatise primarily as an in-house text for a small group of people.

But there is also a sense in which the “we” is fairly broad. Although it excluded many people who worked with law right in the English royal courts, the people the authors would have encountered every day when court was in session, “Law… is the art of what is fair and just, of which we are deservedly called the priests, for we worship justice and administer sacred rights” connected the authors and their audience to other people across time and space. Although it is not marked as such in the treatise, it is actually a quotation. The authors probably took it from Azo’s Summa on the Institutes, a treatise on Roman law produced by the preeminent jurist of Bologna, Europe’s premier center for the study of Roman law, in the early thirteenth century. In Azo’s text, the “we” refers to the jurists of Roman law working throughout the Latin West. Azo had himself taken the line from Justinian’s Digest, the sixth-century compilation of the writings of jurists of the classical period of Roman law, where it appeared in an excerpt from the jurist Ulpian. For Ulpian, the “we” referred to the jurists of his own time, the 2nd to 3rd centuries C.E. The authors certainly knew the source of the quotation and, although I cannot prove this, I suspect they expected their readers to know it, too.

The justices who wrote Bracton seem to have felt little kinship with the people who were beginning to make a living practicing before them in the courts. But they felt a kinship with the jurists of Roman law teaching and practicing throughout the Latin West and possibly with their ancient Roman predecessors, as well. In an island kingdom which appeared on medieval maps, even maps made in England, on the very edge of the world, these justices imagined themselves as part of an international community of jurists of the civil law.

-Tom McSweeney

Weekend Roundup

• The Organization of American Historians has cancelled its annual meeting. But you can still skim the excellent program that the organizers put together. Margot Canaday (Princeton University) and Craig Steven Wilder (MIT) co-chaired the program committee. AND, if you were scheduled to present, check out this invitation (via Twitter) from The Docket (the online companion to the Law & History Review): "We’re sad about all that awesome #legalhistory scholarship that was going to be at #OAH20 and we’d like to be of service. The Docket will publish abstracts, full papers, etc. for any law, policy, or politics related OAH panel!" 

• Two recent op-eds by Felicia Kornbluh (University of Vermont): "Will the Court Ignore Past Rulings in Its Zeal to Demolish Abortion Rights?" (American Prospect) and "The abortion issue is back in the Supreme Court. What would my mother, and Jewish feminists of her generation, think?" (Forward).

• From Process, the blog of the Organization of American Historians, Greg Ablavsky (Stanford Law) writes about his recent Journal of American History article “Species of Sovereignty: Native Nationhood, the United States, and International Law, 1783–1795.

• For those who have moved to online teaching, Twitter is filled with good resources right now. For example, Aimi Hamraie (Vanderbilt University) tweeted out an excellent guide to "accessible teaching in the time of COVID-19," tapping into some hard-won wisdom from "disabled culture and community." 

• Law and History Review and Cambridge Core have posted two new articles: “Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England, by Laura Lammasniemi, and Vernacularizing Justice: Age of Consent and a Legal History of the British Empire, by Ishita Pande. 

• Reuel E. Schiller has published “Regulation and the Collapse of the New Deal Order, or How I Learned to Stop Worrying and Love the Market,” in Beyond the New Deal Order: U.S. Politics from the Great Depression to the Great Recession, ed. Gerstle, Lichtenstein, and O’Connor (University of Pennsylvania Press, 2019).

• From the Washington Post's "Made by History" section: Elisa Minoff (Center for the Study of Social Policy) on why "work requirements are catastrophic in a pandemic"; Brendan Shanahan (Yale University), "Counting everyone — citizens and non-citizens — in the 2020 census is crucial"; Ariela Gross (University of Southern California) and Alejandro de la Fuente (Harvard University), "The history of slavery remains with us today"; and more.

• The Library of Congress may be closed to the public, but we believe its “crowdsourcing initiative By the People” continues.  The newest campaign to enlist the public’s help in making "digital collection items more searchable and accessible online is Herencia: Centuries of Spanish Legal Documents includes thousands of pages of historical documents in Spanish, Latin and Catalan."

• Jayanth K. Krishnan, Indiana University Maurer School of Law, has posted "Lawyers for the Undocumented: Addressing a Split Circuit Dilemma for Asylum-Seekers," which is forthcoming in the Ohio State Law Journal.  A section treats the Equal Access to Justice Act (EAJA), a federal statute adopted in 1980.

• ICYMI: An exhibit at the Lombard Historical Society on “the first woman to ever vote in an Illinois municipal election, an attorney named Ellen Martin.”  Patti Smith’s blurb of Ralph Nader’s cookbook: “A wonderful blend of consumer protection and consumer pleasure.” H/t: JLG

• And if you can face it: Duke University Press has put together this Navigating the Threat of Pandemics collection--free to read online until June 1 (books) and Oct.1 (articles). LHB readers may appreciate this one especially.

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

Hofmann, Kurtz & Levine, eds., "Powerful Arguments"

New from Brill: Powerful Arguments: Standards of Validity in Late Imperial China (March 2020), edited by Martin Hofmann (Heidelberg University), Joachim Kurtz (Heidelberg University), and Ari Daniel Levine (University of Georgia). A description from the Press:

The essays in Powerful Arguments reconstruct the standards of validity underlying argumentative practices in a wide array of late imperial Chinese discourses, from the Song through the Qing dynasties. The fourteen case studies analyze concrete arguments defended or contested in areas ranging from historiography, philosophy, law, and religion to natural studies, literature, and the civil examination system. By examining uses of evidence, habits of inference, and the criteria by which some arguments were judged to be more persuasive than others, the contributions recreate distinct cultures of reasoning. Together, they lay the foundations for a history of argumentative practice in one of the richest scholarly traditions outside of Europe and add a chapter to the as yet elusive global history of rationality.

More information, including the table of contents, is available here. One chapter that might particularly interest readers is "Some Problems with Corpses: Standards of Validity in Qing Homicide Cases" by Matthew H. Sommer (Stanford University).

-- Karen Tani

NARA Reading Rooms and Presidential Libraries Closed

We previously reported the closure of the Library of Congress to the pubic until April 1.  Now NARA has announced the closure of all its research rooms and presidential libraries at the close of business today.

--Dan Ernst

Just Money: Design and Change over Time

We’ve learned of an impressive new website, Just Money, which aims to “provide a platform for discussion and debate over money’s design and its change over time.”  More particularly:

On this website, we approach money as a legal project.  Created to meet demands both public and private, money depends on law for its definition, issue, and operation.    That legal structure of money – its design – matters deeply.  In the words attributed to an early  banker, “those who create and issue money . . . direct the policies of government and hold in the hollow of their hands the destiny of the people.”   Our aim is to encourage discussion, debate, and scholarship on money’s design and its reform towards a world that is as just as it is (economically) productive.

Money, governance, and the public welfare are intimately connected in modern society.    Most obviously, the way political communities make money and allocate credit is an essential vector of material life.  It critically shapes economic processes – channeling liquidity, fueling productivity, and influencing distribution.  At the same time, those decisions about money and credit define key political structures, locating in particular hands the authority to mobilize public resources, determining opportunities for individuals and industries, and delegating power and privileges to create credit and accumulate profit.  Finally, modes of making money shape categories and strategies at the collective level, including the incentives we institutionalize, the assumptions we grow to share, and the possibilities we learn to recognize.

Christine Dean, Harvard Law School, writes that discussions will address both historical and contemporary topics.  “For example, I just posted an argument about the way new forms of money fueled the industrial revolution, here.  Ongoing and future roundtables include those on ‘Virtual Currency and the State’ and ‘Race and Money.’

–Dan Ernst

ASLH 2020: Deadline Extended

[Although today is the original deadline for submissions for the 2020 annual meeting of the American Society for Legal History in Chicago, the Chairs of the Program Committee are postponing the deadline by two weeks.  The new deadline is Friday, March 27, 2020.]

Call for Papers: 2020 ASLH Annual Meeting

The Program Committee of the ASLH invites proposals for complete panels and individual papers for the 2019 meeting to be held November 11-14 in Chicago. Panels and papers on any facet or period of legal history from anywhere in the world are welcome.  We encourage thematic proposals that transcend traditional periodization and geography.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows and scholars from abroad.

Panel proposals should include the following: a c.v. with complete contact information for each person on the panel, including chairs and commentators; 300-word abstracts of individual papers; and a 300-word description of the panel.

The Program Committee also welcomes other forms of structured presentation for a 90-minute slot, including lightning round (1-2 chairs, 8-12 presenters for a few minutes each on projects in a related field at any stage of development), skills/pedagogical workshop (chair, 3-4 presenters), or roundtable format (1-2 chairs, 3-4 presenters). The Committee will also consider author-meets-reader panel proposals concerning books with a publication date of 2019. We encourage panels that put two or three books in conversation, with up to three commentators total. Sufficient information following the general guidelines for panel proposals should be provided for the Committee to assess the merits of the presentation.

Individual paper submissions should consist of an abstract, a draft paper (where possible), and a c.v. Given the number and high quality of panel and other complete sessions submitted, individual papers are much less likely than full sessions to be accepted.  Would-be individual paper submitters are encouraged to connect with other scholars to coordinate the submission of complete session proposals. [They may do so in the comments to this post, which LHB moderators will occasionally move up.]

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. Please provide a program title, the intended length of program, a program description, a c.v. and contact information for each presenter, and any information technology requirements. The Program Committee is available to consult with organizers of such symposia as they develop their proposal.

As a general matter, we will not be able to accommodate special scheduling requests, so prospective presenters, chairs, and commentators at the main conference should plan to be available on Friday, November 13, and Saturday, November 14.  The ASLH has a strict one-appearance policy. Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.

The Program Committee encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

The members of the Program Committee are Fahad Bishara, Eliga Gould, Sophia Lee, Tahirih Lee, Alison Lefkowitz, Cynthia Nicoletti, Bhavani Raman, Karl Shoemaker, Simon Stern, and Victor Uribe. The co-chairs of the Program Committee are professors Kristin Collins (collinsk@bu.edu) and Ari Bryen (ari.z.bryen@vanderbilt.edu).

All program presenters must be current members of the Society by the date of the Annual Meeting. All proposals must be submitted through the ASLH website, which will be available to take submissions shortly. Please visit [here] http://aslh.net for updates and additional information.

The deadline for submissions is [Friday, March 27, 2020.]

Witte and Latterall on Establishment in Massachusetts

John Witte and Justin Latterell, Emory University School of Law, have posted The Last American Establishment: Massachusetts, 1780-1833, which appears in Religious Dissent and Disestablishment: Church-State Relations in the New American States, 1776-1833, ed. Carl H. Esbeck and Jonathan Den Hartog (Columbia, MO: University of Missouri Press, 2019), 399-424:

This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should respect and encourage diverse religious beliefs and practices, at least among Protestants. But controversial issues including religious test oaths, church membership rules, and the use of taxes to support Congregationalist Churches created sharp political divisions. In 1833, the Eleventh Amendment to the Massachusetts Constitution moved away from religious establishment. It made church membership and funding entirely voluntary; granted all religious societies the right to hire their own clergy, to build their own churches, and to manage their own membership rolls; promised equal protection of the law to believers of all sects and non-believers, alike; and ensured that individual members of those sects could exit without incurring liability for contracts subsequently made by the other members of that sect.

--Dan Ernst

LC Manuscript Division to Close until April 1

The Library of Congress will close to the public today at 5:00 pm and not reopen before 8 am on April 1.

As of this posting, and according to NARA’s website, Archives 1 and 2 are still open to researchers.  Public events are canceled through May 3.  The following regional centers are closed to the public: John F. Kennedy Library and Museum, National Archives at Seattle, National Archives at New York City, National Archives at Chicago.

--Dan Ernst

Bartrum on the Intellectual Origins of American Judicial Power

Ian C. Bartrum, University of Nevada, Las Vegas, William S. Boyd School of Law, has posted The People's Court: On the Intellectual Origins of American Judicial Power, which is forthcoming in volume 125 of the Dickinson Law Review:

This article enters into the modern debate between “constitutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we must expand the traditional conception of the “separation of powers” to include not just distinct institutional functions, but also the structured division of the sovereign prerogative itself, both within and without the institutions of government. It then becomes possible to read Article III as part of a larger effort to unbundle the metaphorical sticks of traditional sovereign power, and to vest what I call the revolutionary prerogative in an independent judicial branch.

This prerogative establishes an institutional form through which the Court might invoke John Locke’s famous “revolution principle” on behalf of the sovereign People. It thus allows for what James Wilson celebrated—and what Sir William Blackstone could not conceive—the possibility of legalized revolution. In other words, the revolutionary prerogative allows for formal, independent appeal of the terms of the constitutional contract, by which the People delegated limited and contingent authority to their legislative and executive agents. Indeed, it is the final legal step before constitutional amendment or dissolution. Of course, the People retain the ultimate sovereign prerogative to declare the state of exception, but once constituted, the meaning of our fundamental law remains firmly, and solely, a matter of judicial discretion.

--Dan Ernst

Sommer on autopsy and confession in Qing China

Matthew H. Sommer (Stanford University) has published "Some Problems with Corpses: Standards of Validity in Qing Homicide Cases" as part of Martin Hofmann, Joachim Kurtz and Ari Daniel Levine, eds., Powerful Arguments: Standards of Validity in Late Imperial China, Sinica Leidensia, vol.146 with Brill (5 March 2020). Here's the opening:

This chapter explores homicide cases from the Qing dynasty (1644-1912) to interrogate the perfect balance between autopsy and confession that was necessary for magistrates to pass judgment. What factors might disturb that balance, and what problems then arose? How did the Qing system cope with these problems? Moreover, how good was Qing forensic medicine, according to modern standards?

When considering standards of validity in the legal field, it is useful to distinguish between representation and practice: that is, between the ideal principles invoked by normative sources and the practical realities that impinged on the actual work of judicial authorities. This chapter will tack between the two dimensions, illuminating how the Qing judicial system was supposed to work, but also how difficult forensic cases might induce magistrates and coroners to diverge from that ideal. Running through this material like a red thread is the Qing judiciary's reliance on self-incrimination under duress--raising fundamental questions that are not merely academic, given their painful relevance to criminal justice in China and elsewhere today.

Further information is available here. 

--Mitra Sharafi

Julian Mezey Dissertation Award to Prifogle

Congratulations to Emily Prifogle (University of Michigan Law), whose legal-historical dissertation was recently awarded the Julian Mezey Dissertation Award by the Association for the Study of Law, Culture & the Humanities. Prifogle's dissertation, completed at Princeton University, is titled "Cows, Cars, and Criminals: The Legal Landscape of the Rural Midwest, 1920-1975." Prifogle shared the award with Elizabeth Rule (also currently at the University of Michigan, in the Center for Indigenous Politics and Policy). The screenshot below is from the conference program.

-- Karen Tani

"New Perspectives on Regulatory History"

The latest issue of Business History Review (93:4) is a special issue, New Perspectives in Regulatory History.

Introduction: New Perspectives in Regulatory History, by Laura Phillips Sawyer and Herbert Hovenkamp

Institutional Economics and the Progressive Movement for the Social Control of American Business, by William J. Novak, with a comment by Susie J. Pak

Anti-Competition Regulation, by Anne Fleming, with a comment by Rebecca Haw Allensworth

The Curious Origins of Airline Deregulation: Economic Deregulation and the American Left, by Reuel Schiller, with a comment by Lily Geismer

A Premature Postmortem on the Chicago School of Antitrust, by Daniel A. Crane, with a comment by Lina M. Khan

Prisms of Distance and Power: Viewing the U.S. Regulatory Tradition, by David J. Gerber.

The issue also includes the review essay, Corporations, Democracy, and the Historian, by Richard R. John.

--Dan Ernst

Nevers and Krishnaswami on Statutory Notes in the US Code

Shawn G. Nevers, Brigham Young University J. Reuben Clark Law School, and Julie Graves Krishnaswami, Yale Law School, have posted The Shadow Code: Statutory Notes in the United States Code, which is forthcoming in volume 112 of the Law Library Journal:

28 U.S.C. §1350 (2012).

Many legal researchers may be unaware that some valid statutory provisions appear as statutory notes rather than in sections of the United States Code. This article examines the history, creation, and purpose of statutory notes in the United States Code, and provides data on the number of statutory notes that exist. It also explores the challenges statutory notes present in the research process and offers guidelines and best practices for researching and teaching this often overlooked aspect of the United States Code.

--Dan Ernst

Putting the People into Legal History

One of the central questions in the history of the early common law concerns the early common law’s relationship to civil law. Roman and canon law, the ancestors of modern civil-law systems, were experiencing a revival across Europe around the same time the central royal courts in England were establishing the institutions and procedures that we now think of as hallmarks of the common law. English exceptionalism is a well-worn trope, and there’s a tenacious narrative that presents the common law as a wholly insular and uniquely English institution. There’s often a heavy dose of superiority in this narrative, as well. Tamar Herzog recently pointed out on this blog that continental law is often used as a straw man against which to compare the common law. To counteract this narrative of English superiority scholars have looked for signs of civilian influence on the early common law.

One issue I’ve encountered with the literature on this issue, however, is that it often speaks as if the legal systems are the actors, as if an essentialized civil law or ius commune is exerting some kind of influence on an essentialized common law. But if we find civilian influences in the early common law, it is presumably because there were people who put them there. When I wrote Priests of the Law, I wanted the people, and how they navigated the bodies of norms, networks, ideas, and institutions that we call the common law and the civil law, to be at the center of the story.

One of the problems of writing about individuals in the middle ages is the spottiness of the evidence. William of Raleigh, who was probably the person who wrote most of the Bracton treatise, was a major figure in the courts of the thirteenth century. He was chief justice of the court that in later centuries would be called the King’s Bench, he seems to have been King Henry III’s chief administrator and adviser for a time in the 1230s, and he died bishop of Winchester, one of the wealthiest and most important episcopal sees in England. We do not know who his parents were or when he was born. We can only guess at how old he was when he was writing Bracton and advising the king. A series of letters from Robert Grossteste, an important cleric, to William of Raleigh survive, but we are left to reconstruct Raleigh’s side of the conversation from what Grosseteste says. The justices of the king’s courts only really enter this historical record when they have reason to, usually when they’re encountering the administrative institutions of either the Church or the Crown, which kept written records. Raleigh first entered the historical record when he received an ecclesiastical living as rector of a parish church, for instance.

So how do we fill these gaps in our knowledge? This is where Bracton comes in. As I noted in my previous post, Bracton was written by a succession of justices working in the king's courts in the thirteenth century. Bracton has generally been mined for what it can tell us about the law, but it is just as interesting for what it can tell us about the justices who wrote it. It tells us quite a bit about how they perceived themselves and their work. The authors of the treatise were familiar with a range of texts of Roman and canon law. In Bracton, they wove Roman and canon law together with the work of the royal courts, and they did it in interesting ways. The authors of the treatise sometimes use Roman law to fill gaps in the common law or to push for reform of a rule to be more in line with that of Roman law. The most interesting, and I think most common, use of Roman law we find in the treatise is to try to prove that the rules and procedures of the common law are already perfectly in line with the rules of Roman law. The authors go to great lengths to try to demonstrate that the English writs for land could be explained in terms of Roman possessio and proprietas, creating a number of inconsistent schemes for reconciling the one with the other. I argue in the book that the justices’ use of Roman law was mostly about how they wanted to perceive themselves and their work. These justices did not think that the law applied in the English royal courts was superior to the Roman civil law and they would not have approved of the notion that English common law was exceptional. These justices worked hard to demonstrate that their work could be understood through the lens of Roman law and that the common law was just one part of a broader civil-law culture.

-Tom McSweeney

New from the FJC History Office

The History Office of the Federal Judicial Center is out with two new websites.  The first, Cases that Shaped the Federal Courts, groups the Office’s case summaries, discussion questions, and excerpted documents in relation to various topics: Defining the Judiciary; Federal Jurisdiction; Federalism; Habeas Corpus; Judicial Independence; Judicial Review; Justiciability; Non-Adjudicatory Roles of Federal Judges; and Remedies.  The second is a series of essays on the history of the Rules of Practice and Procedure in the Federal Courts.

--Dan Ernst

Weekend Roundup

• Lately, the History Office of the Federal Judicial Center has been supplementing its usual tweets with threads on particular federal cases. Here is one on Amistad; ongoing is one on Ableman v. Booth.

• In the New York Times: Jane Manners and Lev Menand (both fellows at Columbia Law School) draw on history to discuss whether the Supreme Court will protect agencies from Trump’s reach. Also in the NYT: Mary Ziegler (Florida State University College of Law) on why “The Heartbeat Bills Were Never the Real Threat to Abortion Rights.” 

• Ziegler also has an op-ed in the Washington Post's "Made by History" section: "The question no one is asking about the Supreme Court and abortion." Also in the WaPo: legal historian Bruce Mann may not be the First Man in 2021, but "losing primary candidates still influence the race," says Anastasia Curwood (University of Kentucky).

• Over at the University of Minnesota's Riesenfeld Rare Books is this Swedish law book exhibit.

• The American Historical Association is now accepting nominations for its 2020 awards and prizes, including the Littleton-Griswold Prize for “the most distinguished book on US law and society, broadly defined.”

• The March 2020 issue of the Journal of American History is out with the following principal articles:  “The Properties of Capitalism: Industrial Enclosures in the South and the West after the American Civil War,” by Emma Teitelman; “Truth in the Jungle of Literature, Science, and Politics: Upton Sinclair's The Jungle and Food Control Reforms during the Progressive Era,” by Rüdiger Graf; “The Evolution of Environmental (In)Justice in Spartanburg, South Carolina, 1900– 2000,” by Andrew Gutkowski; and “Bananas North, Deportees South: Punishment, Profits, and the Human Costs of the Business of Deportation,” by Adam Goodman.

• ICYMI: Henry J. Abraham, a historian of the US Supreme Court, has died (WaPo).  Baylor law, history students ‘relitigate’ Boston Massacre trial 250 years later. “Corpus linguistics” originalism on the Second Amendment (HNN). A University of North Georgia student and the keys to Leo Frank’s cell (Gainesville Times).

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

Bird's "Revolution in Freedoms of Press and Speech"

Wendell Bird has published The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox's Libel Act (Oxford University Press):

This book discusses the revolutionary broadening of concepts of freedom of press and freedom of speech in Great Britain and in America in the late eighteenth century, in the period that produced state declarations of rights and then the First Amendment and Fox's Libel Act.

The conventional view of the history of freedoms of press and speech is that the common law since antiquity defined those freedoms narrowly, and that Sir William Blackstone in 1769, and Lord Chief Justice Mansfield in 1770, faithfully summarized the common law in giving a very narrow definition of those freedoms as mere liberty from prior restraint and not liberty from punishment after something was printed or spoken.

This book proposes, to the contrary, that Blackstone carefully selected the narrowest definition that had been suggested in popular essays in the prior seventy years, in order to oppose the growing claims for much broader protections of press and speech. Blackstone misdescribed his summary as an accepted common law definition, which in fact did not exist. A year later, Mansfield inserted a similar definition into the common law for the first time, also misdescribing it as a long-accepted definition, and soon misdescribed the unique rules for prosecuting sedition as having an equally ancient pedigree. Blackstone and Mansfield were not declaring the law as it had long been, but were leading a counter-revolution about the breadth of freedoms of press and speech, and cloaking it as a summary of a narrow common law doctrine that in fact was nonexistent.

That conflict of revolutionary view and counter-revolutionary view continues today. For over a century, a neo-Blackstonian view has been dominant, or at least very influential, among historians. Contrary to those narrow claims, this book concludes that the broad understanding of freedoms of press and speech was the dominant context of the First Amendment and of Fox's Libel Act, and that it enjoyed greater historical support.

–Dan Ernst

Readers' Marks in Law Books: A Yale Law Library Exhibit

[The Yale Law Library has a new exhibit, Precedents So Scrawl’d and Blurr’d: Readers’ Marks in Law Books.  I’m told that one of the stars of the exhibit is the great Contracts scholar Arthur Corbin.  DRE.]

Books are the lawyer's tools and the law student's laboratory, and nothing brings this home better than the marks that they leave in their books. Over 30 such annotated and inscribed books from the Lillian Goldman Law Library are on display in "Precedents So Scrawl'd and Blurr'd: Readers' Marks in Law Books," the Spring 2020 exhibition from the library's Rare Book Collection.

Exhibition curator Mike Widener, the Law Library's rare book librarian, selected items that offer both research potential and insights into the roles that law books have played in people's lives. The marks left by readers document the lived experience of the law, and remind us that law is above all a human endeavor.

The exhibition's title comes from John Antsey's verse satire of the legal profession, "The Pleader's Guide" (1796): "Precedents so scrawl'd and blurr'd / I scarce could read one single word."

Many of the volumes illustrate the work of lawyers, law students, law professors, and authors throughout the centuries. Doodles suggest the writers taking a break from dreary legal studies. Scraps of poetry can be sources for literary scholars. Readers also used their books to record events, ranging from a drunken outburst in the New Jersey assembly to a famous naval battle of the War of 1812 and the beheading of Henry VIII's fifth queen.

"These books represent a small fraction of the annotated books in the Yale Law Library's rare book collection," said Widener. "They demonstrate the value of collecting these artifacts, and constitute the Law Library’s invitation to explore them further."

"Precedents So Scrawl'd and Blurr'd" is the latest in a series of exhibitions that examine law books as physical artifacts, and the relationships between their forms and content. It is on display March 2 to June 17, 2020, in the Rare Book Exhibition Gallery of the Lillian Goldman Law Library, located on Level L2 of the Yale Law School (127 Wall Street, New Haven CT). The exhibition is open to the general public 10am-6pm daily, and open to Yale affiliates until 10pm.

For more information, contact Mike Widener, Rare Book Librarian, phone (203) 432-4494 and email <mike.widener@yale.edu>.

Craig's "Stringfellow Acid Pits"

We received word the other day of another addition to the shelf of book-length case studies on environmental law (ours includes Duncan Maysille’s Ducktown Smoke and William Buzbee’s Fighting Westway).  It is Stringfellow Acid Pits: The Toxic and Legal Legacy (University of Michigan Press, 2020) by Brian Craig, a lawyer in Logan, Utah and a full-time adjunct faculty member in the School of Legal Studies at Purdue University Global.

Stringfellow Acid Pits tells the story of one of the most toxic places in the United States, and of an epic legal battle waged to clean up the site and hold those responsible accountable. In 1955, California officials approached rock quarry owner James Stringfellow about using his land in Riverside County, east of Los Angeles, as a hazardous dump site. Officials claimed it was a natural waste disposal site because of the impermeable rocks that underlay the surface. They were gravely mistaken. Over 33 million gallons of industrial chemicals from more than a dozen of the nation’s most prominent companies poured into the site’s unlined ponds. In the 1960s and 1970s, heavy rains forced surges of chemical-laden water into Pyrite Creek and the nearby town of Glen Avon. Children played in the froth, making fake beards with the chemical foam. The liquid waste contaminated the groundwater, threatening the drinking water for hundreds of thousands of California residents. Penny Newman, a special education teacher and mother, led a grassroots army of so-called “hysterical housewives” who demanded answers and fought to clean up the toxic dump.

The ensuing three-decade legal saga involved more than 1,000 lawyers, 4,000 plaintiffs, and nearly 200 defendants, and led to the longest civil trial in California history. The author unveils the environmental and legal history surrounding the Stringfellow Acid Pits through meticulous research based on personal interviews, court records, EPA documents, and other documents. The contamination at the Stringfellow site will linger for hundreds of years. The legal fight has had an equally indelible influence, shaping environmental law, toxic torts, appellate procedure, takings law, and insurance coverage, into the present day.

--Dan Ernst

AJLH on Alfred Brody

Last fall we announced that Felice Batlan was named co-editor of the American Journal of Legal History.  Now the editors have published an editorial in the on-line edition of AJLH thanking Alfred Brophy for his service in relaunching the journal:

It is with great sadness that we have to announce that Professor Alfred Brophy of the University of Alabama had to step down from his Co-editorship of the American Journal of Legal History, due to ill health. His vision, wisdom, and energy were crucial in the process of relaunching the oldest English-language periodical in the field in 2016. Many of our authors owe their publication with the journal to his readiness to help, warmth, and generosity. A distinguished and widely acclaimed scholar himself, he often shepherd more junior colleagues’ work towards publication. He will be greatly missed, not least for his contagious humour.

I'll add that I'm one of those authors indebted to Professor Brophy for his editing of an article and, more generally, am grateful to him for our exchanges as disciplinary colleagues over the years.  I'm very pleased to learn from the editorial that the editors are establishing an annual prize in his honor.

--Dan Ernst

Tan on the Fed's Independence

Caroline W. Tan, a JD student at the NYU Law School, has posted What the Federal Reserve Board Tells Us About Agency Independence, which is forthcoming in the New York University Law Review 95 (April 2020): 101-135.  NYU Law’s Samuel Issacharoff supervised her writing of the note, which originated in an undergraduate thesis at Yale supervised by Naomi Lamoreaux.

FDR Dedicates New FRB Building, 1937 (LC)

In administrative law, the sine qua non of agency independence lies in the enabling statute. If the statute protects the agency’s head from removal except “for cause,” then the agency is considered insulated from Presidential control and classified as independent. On the other hand, if the statute is silent on for-cause tenure protection, then the agency is classified as executive. This Note questions that central assumption by relying on the history of the Federal Reserve Board of Governors, arguably one of the most independent agencies in Washington. By tracing the Board’s history from a limited institution in 1913 to the powerful central bank of today, this Note demonstrates that in at least some cases, the driving factors behind operative independence have more to do with the practical realities of governance than the formalities of administrative law. Indeed, even though the Fed’s enabling statute is silent on the issue of for-cause tenure protection, the President has never fired the head of the agency. Even President Trump has declined to go so far. This Note addresses this paradox through a detailed look at the Board’s history and the major inflection points in its rise. Throughout, this Note also highlights the active role that the Board played in its own ascendency, demonstrating the dynamic life of administrative agencies and the powerful role they can play in shaping their own futures.

 Here's the TOC:

Introduction
I.   The Inevitable Conflict between the President and the Board
II.   The Board’s Evolution
A.    Independence Through Internal Reorganization: The Banking Act of 1935
B.    Independence Through Symbolism: The Fed-Treasury Accord of 1951
C.    Independence Through Power: The Bank Holding Company Act of 1956
III.   Implications for Administrative Law
Conclusion

--Dan Ernst

Siddiqui on Abbasid Law and Politics

Sohaira Z. M. Siddiqui (Georgetown University, Qatar) published Law and Politics under the Abbasids: An Intellectual Portrait of al-Juwayni in 2019 with Cambridge University Press. From the publisher: 

Abu Ma'ali al-Juwayni (d.478/1085) lived in a politically tumultuous period. The rise of powerful dynastic families forced the Abbasid Caliph into a position of titular power, and created instability. He also witnessed intellectual upheavals living amidst great theological and legal diversity. Collectively, these experiences led him to consider questions of religious certainty and social and political continuity. He noted that if political elites are constantly changing, paralleled with shifting intellectual allegiances, what ensures the continuity of religion? He concluded that continuity of society is contingent upon knowledge and practice of the Shari'a. Here, Sohaira Siddiqui explores how scholars grappled with questions of human reason and knowledge, and how their answers to these questions often led them to challenge dominant ideas of what the Shari'a is. By doing this, she highlights the interconnections between al-Juwayni's discussions on theology, law and politics, and the socio-political intellectual landscapes that forged them.

 Table of Contents after the jump:

Abraham and White on Modern Tort Liability

Kenneth S. Abraham and G. Edward White, University of Virginia School of Law, have posted Rethinking the Development of Modern Tort Liability, which is forthcoming in the Boston University Law Review:

The standard story of the development of modern tort liability is straightforward, but it turns out to be seriously misleading. The story is that, in the second half of the nineteenth century, negligence liability replaced the pre-modern forms of action as the principal basis for the imposition of liability for accidental bodily injury and property. Suits for negligence began to be brought, and insurance against liability for negligence was introduced. The tort system, and the liability insurance system that had arisen to accompany it, were then quiescent for the next half-century. Around 1970 tort liability began to expand substantially. For several decades there have been contentions that at that point there was an “explosion” of tort liability.

The problem with this story is that it trades on a misleading caricature of what was occurring in the tort system before 1970. Tort law doctrine was indeed largely quiescent during the middle four or five decades of the twentieth century, just as the story suggests, until the well-known doctrinal expansions of 1965 to 1985 began. But tort liability was not quiescent at all. The magnitude of payments made to tort victims increased exponentially between 1920 and 1970 – by some measures, at a much greater rate than after 1970 -- and the magnitude of premiums paid for liability insurance increased in the same exponential manner. In addition, after liability insurance was introduced late in the nineteenth century, it did not simply become a behind-the-scenes source of financing for tort defendants, the way a passive guarantor stands behind a debtor. Rather, between 1920 and 1970, the courts confirmed, created, and extended liability insurers’ duty to defend their policyholders in tort suits and their duty to accept reasonable offers to settle tort suits against their policyholders. Liability insurers’ active performance of those duties created an unrecognized dynamic cycle that intensified the growth of tort liability, bringing it to the point where it stood in 1970. This Article rethinks the conventional story, by examining the important developments in tort liability and liability insurance that preceded the “explosion” of tort liability, and offers historical, political, and intellectual reasons why the misleading conventional story took root.

--Dan Ernst

Nicoletti on Transcendant Constitutionalism in the Civil War Era

Cynthia Nicoletti, University of Virginia School of Law, has posted The Rise and Fall of Transcendent Constitutionalism in the Civil War Era, which is forthcoming in volume 106 of the Virginia Law Review (2020)

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty.

After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.

--Dan Ernst

CFP: BLHC 2021

[The 2021 British Legal History Conference (BLHC), in association with the Irish Legal History Society, have issued the following Call for Papers for Law and Constitutional Change, to be held at Queen’s University, Belfast, July 7-10, 2021.  DRE.]

Abstracts are invited for the 2021 BRITISH LEGAL HISTORY CONFERENCE which is being run jointly with the IRISH LEGAL HISTORY SOCIETY and hosted by Queen’s University Belfast. 

2021 will be a significant year in the “Decade of Centenaries”  in Ireland, north and south, marking both the centenary of the opening in June 1921 of the Parliament of Northern Ireland, established under the Government of Ireland Act 1920, and the centenary of the signing of articles of agreement for the Anglo-Irish Treaty in December 1921, which led to the establishment of the Irish Free State.  Against this background, BLHC 2021 will take place in partnership with the ILHS in Belfast. 

While the conference theme-“Law and Constitutional Change”-has been chosen in the context outlined above, this is without any intention to restrict the scope of the conference papers to Anglo-Irish history.   The theme will be interpreted in all its historical breadth, examining from any historical perspective the relationship between law and law-making on the one hand and, on the other, the shaping of constitutional principles and the disruption or maintenance of constitutional balance.

Please note the following rules:

• Abstracts must be for individual papers only, not for panels

• Only one abstract to be submitted per person

• Abstracts must be submitted as Microsoft Word documents using the online portal on the Call for Papers page of the conference website.  Please do not submit by email.

• Abstracts must not exceed 500 words

• The deadline for submission of abstracts is Friday 30 August 2020

• Queries can be emailed to BLHC-2021-info@qub.ac.uk   

• At the conference, individual oral presentations will last 15-20 minutes.

We hope to publish the programme on the conference website in October 2020.  Details of plenary speakers will also appear there in due course.   Proposals from postgraduate and early career researchers are welcome.

Further information about travel to Belfast, accommodation, and so on, will be added to the conference website during 2020-2021.

This, the second joint BLHC - ILHS conference, was proposed by Sir Anthony Hart, retired High Court judge, former president of ILHS and enthusiastic supporter of BLHCs, who died suddenly in July 2019.  A poster competition is planned during the 2021 conference as a tribute to Tony.  There will be two prizes, including one for the PGR/early career category. The prizes are generously funded by the Journal of Legal History and by the Irish Legal History Society.  Details of the competition will be posted on the conference website.

Cracks in the Foundation: The 14th Amendment and Its Limits

[Civil War History is out with a special issue, 10:1 (March 2020): Cracks in the Foundation: The Fourteenth Amendment and Its Limits.  DRE]

Guest Editor’s Note: Cracks in the Foundation: The Fourteenth Amendment and Its Limits, by Michael T. Bernath and M. Scott Heerman

Lisset Marie Pino and John Fabian Witt, The Fourteenth Amendment as an Ending: Constitutional Beginnings and the Demise of the War Power

Since its enactment and ratification, savvy observers have viewed the Fourteenth Amendment as a vindication of the military experience of the Civil War.  Bullets and bayonets in wartime led to peacetime citizenship in Section 1 of the Fourteenth Amendment and to peacetime ballots that were first protected in Section 2 of the Fourteenth Amendment and then bolstered in the Fifteenth Amendment.  But there is another story to tell as well, one in which the Fourteenth Amendment is not the beginning of a new constitutional story, or at least not only the beginning of a new story, but also a betrayal and an ending.  In important respects the Fourteenth Amendment helped to close out the righteous form of power that had emerged in the antebellum era as a solution to the glaring injustice of slavery.  This crucial authority was the federal government’s war power.  Stories of vindication and of new beginnings are not wrong.  But they make it all too easy to miss the Fourteenth Amendment’s role as part of a complicated denouement of the wartime experience, one that embodied the war’s triumphs but also blunted their force and pace.  The Fourteenth Amendment abandoned a vital chapter of American history even as it occasioned a new one whose results are still unfolding.

Stephen Kantrowitz, White Supremacy, Settler Colonialism, and the Two Citizenships of the Fourteenth Amendment

The Civil War era’s debates over citizenship are conventionally understood as having revolved around the status of emancipated African Americans. But they were also rooted in decades of U.S. policy with regard to Native Americans. In Indian Country, citizenship’s intended purpose was to dissolve Native political sovereignty and to make Indian lands available for sale to white settlers. These two histories of citizenship existed in dynamic tension and were occasionally forced together, as in the Civil Rights Act of 1866 and the Fourteenth Amendment. This essay traces Civil War-era policymakers’ parallel debates over African American and Native American citizenship. Exploring those debates in particular through the thinking of conservative Democrat Allen Thurman, it suggests that while white supremacy came under sustained attack during this era, settler-colonialism—the ideology and practice of replacing Native with settler populations—did not.

Evelyn Atkinson, Slaves, Coolies, and Shareholders: Corporations Claim the Fourteenth Amendment

This article examines the little-known case In re Tiburcio Parrott (1880), in which the federal court extended Fourteenth Amendment rights to corporations for the first time.  It reveals that an analogy between Chinese immigrants and corporate shareholders was the basis for the court’s reasoning.  This Article explores the social and political context of the movements for Chinese exclusion and corporate regulation in 1870s California to explain this analogy, revealing that Chinese immigrants and corporations were seen as intertwined threats that challenged free white labor and threatened popular democracy.  The Article focuses on the dueling interpretations of “equal treatment” and “free labor” at play in this conflict.  It shows how arguments by corporate lawyers, who represented both corporate clients and Chinese immigrants, and the support of sympathetic judges, lay the foundation for an expansive interpretation of the Fourteenth Amendment that eventually was endorsed by the U.S. Supreme Court.

Christopher W. Schmidt, The Fourteenth Amendment and the Transformation of Civil Rights

This article traces two genealogies of civil rights, one of a concept, the other a term. At the time of the drafting and ratification of the Fourteenth Amendment, the term civil rights became associated with a concept of rights that had featured in antebellum struggles over the place of free people of color in American society. Republican lawmakers turned to this newly essential term of racial governance to make the case that freedom required government protect certain fundamental rights—such as the right to make contracts, hold property, and testify in court— but that beyond these rights racial discrimination might be permissible. After Reconstruction, civil rights took on different connotations, and by the mid-twentieth century the term became synonymous with racial antidiscrimination policy generally. Yet the Reconstruction concept of civil rights retained a vestigial presence in Fourteenth Amendment doctrine. Twentieth-century jurists revived this partially forgotten concept for the same reasons it had resonated during Reconstruction: because it justified expanded legal protections against racial discrimination while simultaneously justifying limits on those protections. Tracing the history of the two genealogies of civil rights offers a new perspective on the legacy of Reconstruction on modern American law.

The Overly Familiar Treatise

I’d like to thank Dan, Karen, and Mitra for inviting me to join them this month. I recently published my first book, Priests of the Law, which is about a group of justices in the English royal courts who, I argue, sought to fashion themselves as jurists of the civil law. The central piece of evidence for this contention is the Bracton treatise. I’d like to use this first post to talk a bit about Bracton and why I think it’s such a fascinating text. Bracton is a legal treatise that was written over a period of about 30 or 40 years, between the 1220s and the 1250s, by a succession of justices working in the royal courts. Bracton is one of those medieval texts that modern lawyers have often heard of. It’s cited in a Supreme Court opinion about once a year, usually to demonstrate that some rule or principle goes back to the very beginning of the common law, or very close to it. There are several reasons why people still turn to Bracton. As one of the earliest systematic treatments of the law of the English royal courts, it became part of the common-law canon. It was printed in 1569 and 1640. Our first professor of law at William & Mary, George Wythe, owned a copy. Thomas Jefferson waxed eloquent about its value as “the first digest of the whole body of law, which has come down to us entire,” which, “gives us the state of the Common law in it’s ultimate form, and exactly at the point of division between the Common and Statute law.” Bracton even makes an appearance in the case Pierson v. Post, a mainstay of the first-year property course. Bracton’s accessibility doesn’t hurt: a searchable edition and translation is available online. I think people also cite to it because it is a familiar type of text. We generally refer to it as a treatise, and that’s a good enough description. It’s a text that treats the law of the king’s courts in a methodical way. The treatise is a genre of text we’re familiar with today and it’s a genre of text we’re accustomed to turn to when we need answers about the law. 

I think one of the problems of writing about Bracton is its very familiarity. The fact that the treatise is still a recognizable genre actually hampers our ability to understand a text like Bracton. Its purpose seems fairly obvious to us; it is designed to explain the workings of the king’s courts in a methodical manner. When I started reading historians on Bracton, I saw a lot of very good discussion about when it was written, who wrote it, and whether it accurately represents practice in the royal courts of the thirteenth century. These are important questions, but I didn’t see much writing on what I thought was the really big question: why did anyone think it was a good idea to write this book? I think scholars have largely taken it for granted that they know what a treatise is and why people write them. But writing a treatise about the royal courts was not a terribly obvious thing to do in this period. The Bracton authors did have precedents. Jurists of Roman and canon law were writing treatises in the thirteenth century, and Bracton relies on one in particular, the Summa on the Institutes of Azo of Bologna. At least one other text that could be described as a treatise on the king’s courts existed, the text known as Glanvill, written in the last decades of the twelfth century. Glanvill was an ambitious text in its own way, but it is a much shorter text than Bracton. Bracton is the length of roughly nine or ten Glanvills.  Once we start to think about the Bracton project as an oddity, a strange choice for this group of justices to make, that opens up a lot of interesting questions about the text. Why did these justices and clerks sit down to write this text? One of its authors claims that he worked “long into the night watches” writing it. The people who wrote it were justices and clerks of the king’s courts, not exactly people with a lot of spare time on their hands, so they must have been committed to this project. When we start to think of writing a massive treatise not as a natural choice, but as a fairly strange one, we can start to look at Bracton as a cultural artifact and ask what role it played in the culture of thirteenth-century justices and clerks.

--Tom McSweeney

Almy on the Komegata Maru

We missed this one in 2018: Ruth L. Almy (Indiana University Bloomington) published " 'More Hateful because of its Hypocrisy': Indians, Britain and Canadian Law in the Komegata Maru Incident of 1914" in The Journal of Imperial and Commonwealth History 46:2 (2018), 304-22. Here's the abstract: 

Recent remembrance and memorialisation of the Komagata Maru incident of 1914 has neglected the global and imperial implications of the incident, as well as the role that direct actions by the Indian passengers and Indians in Vancouver took against Canada’s discriminatory law. While the legal loss the passengers suffered could be regarded as simply tragic, the implications for the British Empire behind the Komagata Maru incident are more complex. More than just a legal battle between would-be Indian migrants and the Vancouver immigration authorities, the incident is a highly visible clash of two different understandings of the British imperial legal system. In contrast to any view that imperial harmony and the rights of all its subjects should supersede local concerns within the empire, Canadian immigration and legal officials instead viewed their rights as a self-governing dominion to make and pass their own laws (particularly around areas of racial desirability) as more important than issues of imperial membership, loyalty or harmony. The British government’s decision, in turn, not to contradict Canada’s eventual ruling against the Komagata Maru passengers and the decision to deport them, exposed the legal hierarchies of supposed imperial belonging, citizenship and ‘British liberty’ in the empire at a critical moment in the early twentieth century. What the incident highlighted, then, was an increasing legal distinction between settler colonies and colonies of exploitation within the empire.

Further information is available here. 

--Mitra Sharafi

Briggs and Schofield on Medieval English Manor Courts

We don’t always note gated articles, but this one really deserves notice.  Chris Briggs and Phillipp R. Schofield have published The Evolution of Manor Courts in Medieval England, c.1250–1350: The Evidence of the Personal Actions in The Journal of Legal History:

Manor courts held by landlords for their tenants and other local people existed in their thousands across medieval England. Debate persists concerning the character of these institutions during their heyday in the decades before 1350. This article uses a new database containing hundreds of manorial personal actions – lawsuits which treated areas roughly equivalent to modern tort and contract law – to explore the work of the manor courts, and to reconstruct their development over the first century for which records of their proceedings survive. It is argued that although local variation among manor courts persisted, overall there was a broad process of ‘convergence’. Yet this was not simply a top-down development involving the transmission of practices from the courts of common law, or the communication of external rules by lawyers or landlords. Instead, the suitors, litigants and jurors of the manor courts played a decisive role in this process.

--Dan Ernst

Chafetz on the Nye Committee, Army-McCarthy Hearings and Congressional Overspeech

Josh Chafetz, Cornell Law School, although as of this summer my colleague at Georgetown Law, has posted Congressional Overspeech, which is forthcoming in the Fordham Law Review:

Political theater. Spectacle. Circus. Reality show. We are constantly told that, whatever good congressional oversight is, it certainly isn’t those things. Observers and participants across the ideological and partisan spectrums use those descriptions as pejorative attempts to delegitimize oversight conducted by their political opponents or as cautions to their own allies of what is to be avoided. Real oversight, on this consensus view, is about fact-finding, not about performing for an audience. As a result, when oversight is done right, it is both civil and consensus-building.

While plenty of oversight activity does indeed involve bipartisan attempts to collect information and use that information to craft policy, this Article seeks to excavate and theorize a different way of using oversight tools, a way that focuses primarily on their use as a mechanism of public communication. I refer to such uses as congressional overspeech.

Gerald Nye (R-ND) (LC)

After briefly describing the authority, tools and methods, and consensus understanding of oversight in Part I, the Article turns to an analysis of overspeech in Part II. The three central features of overspeech are its communicativity, its performativity, and its divisiveness, and each of these is analyzed in some detail. Finally, Part III offers two detailed case studies of overspeech: the [Nye] Munitions Inquiry of the mid-1930s, and the McCarthy and Army-McCarthy Hearings of the early-1950s. These case studies not only demonstrate the dynamics of overspeech in action but also illustrate that overspeech is both continuous across and adaptive to different media environments. Moreover, the case studies illustrate that overspeech can be used in the service of normatively good, normatively bad, and normatively ambivalent political projects. Overspeech is a potent congressional tool—and, like all tools, it can be put to a variety of uses.

--Dan Ernst

McClain, "Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law"

New from Oxford University Press: Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, by Linda C. McClain (Boston University School of Law). A description from the Press:

Historically, critics of interracial, interfaith, and most recently same-sex marriage have invoked conscience and religious liberty to defend their objections, and often they have been accused of bigotry. Although denouncing and preventing bigotry is a shared political value with a long history, people disagree over who is a bigot and what makes a belief, attitude, or action bigoted. This is evident from the rejoinder that calling out bigotry is intolerant political correctness, even bigotry itself.

In Who's the Bigot?, the eminent legal scholar Linda C. McClain traces the rhetoric of bigotry and conscience across a range of debates relating to marriage and antidiscrimination law. Is "bigotry" simply the term society gives to repudiated beliefs that now are beyond the pale? She argues that the differing views people hold about bigotry reflect competing understandings of what it means to be "on the wrong side of history" and the ways present forms of discrimination resemble or differ from past forms. Furthermore, McClain shows that bigotry has both a backward- and forward-looking dimension. We not only learn the meaning of bigotry by looking to the past, but we also use examples of bigotry, on which there is now consensus, as the basis for making new judgments about what does or does not constitute bigotry and coming to new understandings of both injustice and justice.

By examining charges of bigotry and defenses based on conscience and religious belief in these debates, Who's the Bigot? makes a novel and timely contribution to our understanding of the relationship between religious liberty and discrimination in American life.

Advance praise:

"Through historical excavation and close readings of primary texts, Linda McClain examines the meaning and use of bigotry over time. By situating us in the thick of past conflicts over equality, McClain shows that views we now repudiate as bigoted were once within the realm of reasonable debate. Her book should be a warning for proponents of equality law today: Labeling one's opponents as bigots may obscure, rather than illuminate, connections between past and present struggles. Instead, by unearthing the similarities in justifications for inequality over time, McClain leaves us better able to appreciate the relationship between struggles for racial equality and struggles for LGBT equality." -- Douglas NeJaime

"At a time when public discourse is so charged, and the label "bigot" carries enormous emotional and psychological weight, Linda McClain helpfully unpacks the legal provenance of this fraught term. Drawing on a diverse range of contexts - from interracial marriage to the present debate over conscience exemptions - McClain considers what it means, as a matter of law and culture, to characterize someone (and their actions) as bigoted. This is required reading for anyone who wants to understand our polarized society and how we got here." -- Melissa Murray

More information is available here.

-- Karen Tani

Hastings VAP on Racial & Economic Justice

[We have the following announcement of a visiting assistant professorship at the Center for Racial and Economic Justice at UC Hastings College of the Law.  DRE.]

University of California, Hastings College of the Law (“UC Hastings” or “the College”), located in downtown San Francisco, seeks applicants for a Visiting Assistant Professor (VAP) for the 2020-21 and 2021-22 academic years to join our Center for Racial and Economic Justice (CREJ).  The VAP position is a full-time, non-tenure track faculty position to support those interested in law school academic careers who intend to engage the field of racial and economic justice in their scholarship.   The VAP will work collaboratively with the Center’s directors and affiliated faculty to further the objectives of CREJ, including the development of new courses and/or seminars in this field.

Competitive candidates are aspiring scholars in the early stages of their careers and practitioners transitioning from practice to law teaching.   A successful candidate must demonstrate a commitment to law teaching and to exploring in their scholarship issues of race, identity, inequality, and marginalization.

UC Hastings will mentor the VAP as a scholar and teacher, training the VAP on pedagogy and cultivating the VAP as a racial or economic justice scholar. The VAP will teach or co-teach courses in the core curriculum and teach or co-teach a seminar on a topic relevant to the CREJ mission and the VAP’s scholarly interests. Core course teaching will be connected to UC Hastings’ innovative 1L curriculum, which includes explicit skills instruction, development of active learning techniques, and 1-1 meetings with students.

The VAP position will begin July 1, 2020 and end June 30, 2022 and will receive an annual salary of $80,000, a faculty development account of $3500, benefits, and eligibility to apply for a research stipend during summer 2021.  Applications are due May 1.  Each applicant should submit the following materials:

• A resume or CV;

• A writing sample that may consist of a seminar paper, a published or draft law review article, pleadings or educational materials from practice;

• A 2-3 page summary stating your reasons for seeking this position, your research agenda and your teaching interests;

• Teaching reviews, if any; and

• 3 references.

Please apply here.

Welcome, Tom McSweeney!

We are delighted to announce a new guest blogger for the month of March.  Thomas J. McSweeney is Professor of Law at the Marshall-Wythe School of Law at William & Mary, where he has taught since 2013.  His courses include histories of the early Common Law, the relationship between Common Law and Civil Law, and the legal profession, as well as Property and Trusts and Estates.  He holds a J.D. and Ph.D. from Cornell University, where he studied with the medievalist Paul Hyams.  He has been a fellow in the ASLH's Hurst Summer Institute in Legal History.  Last semester he was a Visiting Fellow at Clare Hall at the University of Cambridge.

In 2015, in the company of other stalwart medievalists, he strove valiantly to prevent the 800th anniversary of Magna Carta from descending into ahistorical folderol. He has also published many articles and book chapters on other topics in medieval legal history.  Just out from Oxford University Press is Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals:

Priests of the Law tells the story of the first people in the history of the common law to think of themselves as legal professionals: the group of justices who wrote the celebrated treatise known as Bracton. It offers a new interpretation of Bracton and its authors. Bracton was not so much an attempt to explain or reform the early common law as it was an attempt to establish the status and authority of the king’s justices. The justices who wrote it were some of the first people to work full-time in England’s royal courts, at a time when they had no obvious model for the legal professional. They found one in an unexpected place: the Roman-law tradition that was sweeping across Europe in the thirteenth century. They modeled themselves on the jurists of Roman law who were teaching in Italy and France. In Bracton and other texts they produced, the justices of the royal courts worked hard to establish that the nascent common-law tradition was just one constituent part of the Roman-law tradition. Through their writing, this small group of people, working in the courts of an island realm, imagined themselves to be part of a broader European legal culture. They made the case that they were not merely servants of the king. They were priests of the law.

Welcome, Tom McSweeney!

-- Dan Ernst