Suddler, "Presumed Criminal"

We missed this one when New York University Press released it last July: Presumed Criminal
Black Youth and the Justice System in Postwar New York, by Carl Suddler (Emory University). A description from the Press:

A stark disparity exists between black and white youth experiences in the justice system today. Black youths are perceived to be older and less innocent than their white peers. When it comes to incarceration, race trumps class, and even as black youths articulate their own experiences with carceral authorities, many Americans remain surprised by the inequalities they continue to endure. In this revealing book, Carl Suddler brings to light a much longer history of the policies and strategies that tethered the lives of black youths to the justice system indefinitely.

The criminalization of black youth is inseparable from its racialized origins. In the mid-twentieth century, the United States justice system began to focus on punishment, rather than rehabilitation. By the time the federal government began to address the issue of juvenile delinquency, the juvenile justice system shifted its priorities from saving delinquent youth to purely controlling crime, and black teens bore the brunt of the transition.

In New York City, increased state surveillance of predominantly black communities compounded arrest rates during the post–World War II period, providing justification for tough-on-crime policies. Questionable police practices, like stop-and-frisk, combined with media sensationalism, cemented the belief that black youth were the primary cause for concern. Even before the War on Crime, the stakes were clear: race would continue to be the crucial determinant in American notions of crime and delinquency, and black youths condemned with a stigma of criminality would continue to confront the overwhelming power of the state.

A few blurbs:

"A timely and critically important origins story of how black youth became over-policed and under-protected in one of the most liberal cities in America. They were victims of institutional racism and an increasingly hostile police force that refused to protect their right to protest and organize for racial justice. Young people’s bitter awakening to racial consciousness at the end of a police baton is, as Carl Suddler skillfully shows, the starting point for understanding why stop-and-frisk first made its debut in New York City over a half-century ago." ~ Khalil Gibran Muhammad

"In this powerful, timely, and deeply unsettling recovery of America’s criminal justice past, Suddler shines vital new light on the present. By brilliantly revealing the nation’s postwar effort to deal with troubled young people more humanely, this book forces us to face the extent to which the presumption of black criminality utterly undermined that effort and thereafter ensured that black boys and girls would forever be ensnared in a fundamentally unjust juvenile justice system." ~ Heather Ann Thompson

More information is available here.

-- Karen Tani

Manners and Menand on the Presidential Removal Power

Jane Manners and Lev Menand, Academic Fellows and Lecturers in Law, Columbia Law School, have posted Removal Permissions and the Forgotten Tenure of a Term of Years:

Just seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfeasance in office (INM). The President can remove the heads of these agencies for INM and for INM only. While these words establish the contours of these agencies’ “independent” character, there is no consensus about what they mean, and thus, the extent of agency independence. This Article addresses that gap. It resurrects the lost history of removal law and defines INM. It shows that neglect of duty and malfeasance in office are common law terms relating to faithful execution that date back hundreds of years and that inefficiency is a nineteenth century concept having to do with government waste and ineptitude. It further shows that INM provisions are not removal “protections” as they have come to be interpreted in recent years, but removal permissions. Where present, they expand the President’s power by authorizing him to remove officials who are tenured for a term-of-years, a tenure long understood to bar removal—for any reason—by the President in the middle of an officer’s term. Three conclusions follow. First, INM was not written to empower the President to direct agency actions. Independent agencies heads really were meant to exercise their discretionary authority independently. Second, even under an expansive reading of Article II, “for cause” removal provisions do not conflict with the Constitution’s Take Care Clause. INM permits the President to combat “unfaithful execution” by empowering him to remove officials for neglect of duty and malfeasance in office. Third, courts have erred by regularly reading INM into enabling statutes that are silent on removal. Where such statutes create offices “for years,” they presumptively prohibit removal—whether summarily or for cause.

--Dan Ernst

Nash and Collins on the Certificate of Division and the Early Supreme Court

Jonathan Remy Nash, Emory University School of Law, and Michael G. Collins, University of Virginia School of Law, have posted The Certificate of Division and the Early Supreme Court:

The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.

As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.

--Dan Ernst

Roth on reproductive lives in Brazil

Cassia Roth (University of Georgia) has published A Miscarriage of Justice: Women's Reproductive Lives and the Law in Early Twentieth-Century Brazil with Stanford University Press. From the publisher: 

A Miscarriage of Justice examines women's reproductive health in relation to legal and medical policy in Rio de Janeiro, Brazil. After the abolition of slavery in 1888 and the onset of republicanism in 1889, women's reproductive capabilities—their ability to conceive and raise future citizens and laborers—became critical to the expansion of the new Brazilian state. Analyzing court cases, law, medical writings, and health data, Cassia Roth argues that the state's approach to women's health in the early twentieth century focused on criminalizing fertility control without improving services or outcomes for women. Ultimately, the increasingly interventionist state fostered a culture of condemnation around poor women's reproduction that extended beyond elite discourses into the popular imagination.

By tracing how legal thought and medical knowledge became cemented into law and clinical practice, how obstetricians, public health officials, and legal practitioners approached fertility control, and how women experienced and negotiated their reproductive lives, A Miscarriage of Justice provides a new way of interpreting the intertwined histories of gender, race, reproduction, and the state—and shows how these questions continue to reverberate in debates over reproductive rights and women's health in Brazil today.

Praise for the book:

 "Roth's remarkably wide-ranging research offers a comprehensive and nuanced analysis of the science, law, politics, and lived experiences surrounding women's reproduction in Rio de Janeiro in the first half of the twentieth century. Deeply contextualized in the social, economic, and cultural history of post-abolition Brazil, A Miscarriage of Justice interrogates the dialogue between local and global histories of medical and legal sciences while maintaining focus on individual women whose reproductive lives were increasingly pathologized and criminalized. This remarkable book is sure to become required reading in the fields of Latin American and gender history." - Sueann Caulfield

"With straightforward elegance, Roth conveys the harsh realities of women's reproductive experiences in Brazil in a time of great social transformation. Fully accounting for the historical, political, and cultural complexities of their interactions with the larger community and the state, the author documents both change over time and the continuity of women's legal—and even existential—disenfranchisement through varying political regimes." - Julia E. Rodriguez

"In A Miscarriage of Justice, Cassia Roth provides an innovative and unique history of reproduction in Brazil, weaving together medical and legal directives on childbirth, abortion, and infanticide alongside the intimate, embodied experiences of gendered 'crimes' and social inequalities in Rio de Janeiro. Taking a broad view of reproductive health that explores motherhood, infanticide, and abortion simultaneously, Roth argues that the surveillance and criminalization of women's reproductive practices and of their racialized bodies were critical anchors of Brazilian state-building, especially during the complex years of the authoritarian Estado Novo. This is a deeply researched, sophisticated, and insightful study with significant implications for understanding reproductive justice issues even in contemporary politics." - Okezi T. Otovo

Further information is available here.

--Mitra Sharafi

Kennedy and Schuler to Speak on Diversity in Western District of PA

We've learned that on Wednesday, February 12, from 2-4 pm at the Joseph F. Weis, Jr., Federal Courthouse, the US District Court for the Western District of Pennsylvania and the Homer S. Brown Division of the Allegheny County Bar Association are sponsoring the event, Conceived in Liberty and Dedicated to Equality: A Celebration of Diversity in the Western District of Pennsylvania, at which Professor Randall L. Kennedy, Harvard Law School, and Ronald W. Schuler, the author of The Steel Bar: Pittsburgh Lawyers and the Making of America, will be featured speakers.

Gagarin's "Democratic Law in Classical Athens"

Michael Gagarin, the James R. Dougherty, Jr. Centennial Professor of Classics Emeritus at the University of Texas at Austin, has published Democratic Law in Classical Athens in the University of Texas Press’s Fordyce W. Mitchel Memorial Lecture Series:

The democratic legal system created by the Athenians was completely controlled by ordinary citizens, with no judges, lawyers, or jurists involved. It placed great importance on the litigants’ rhetorical performances. Did this make it nothing more than a rhetorical contest judged by largely uneducated citizens that had nothing to do with law, a criticism that some, including Plato, have made?

Michael Gagarin argues to the contrary, contending that the Athenians both controlled litigants’ performances and incorporated many other unusual features into their legal system, including rules for interrogating slaves and swearing an oath. The Athenians, Gagarin shows, adhered to the law as they understood it, which was a set of principles more flexible than our current understanding allows. The Athenians also insisted that their legal system serve the ends of justice and benefit the city and its people. In this way, the law ultimately satisfied most Athenians and probably produced just results as often as modern legal systems do. Comprehensive and wide-ranging, Democratic Law in Classical Athens offers a new perspective for viewing a legal system that was democratic in a way only the Athenians could achieve.

--Dan Ernst

Weekend Roundup

• The conference Critical Legal Studies: Intellectual History and the history of the present, will be held at Princeton University, on February 27-28, 2020.  “Prompted by plans to create a Critical Legal Studies Archive at the Princeton University Mudd Library, the conference will bring together those who participated in CLS in its heyday; key figures from contemporaneous movements in the US and abroad; and people interested today in this history and its contemporary significance.”  The conference is free and open to the public and sponsored by Princeton's Program in Law and Public Affairs.

• Over at Lawfare: Matthew Waxman, Columbia Law, on The Mexican-American War and Constitutional War Powers.

• Kellen Funk, Columbia Law, has Twitter-reviewed Mortenson and Bagley's Nondelegation at the Founding.

• At The Historical Society of the New York State Courts: A biographical sketch of Harold Arnoldus Stevens.  Also, a YouTube video in which member of the Society's Board of Trustees discusses "how we have tragically lost details of historic NY events of national importance."
  

• ICYMI: Exploring the history of Underground Railroad, in the Youngstown Vindicator.  Brooklyn’s courts celebrate Black History Month, in the Brooklyn Daily Eagle.  One barrister's love for the horse hair wig, courtesy of the ABC and Law Fuel.   Law in frontier Oregon, in the Redmond Spokesman.  Better late than never: The NYT obituary of Homer Plessy.

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

Shapiro's "Law Reform in Early Modern England"

Barbara J Shapiro, Professor Emerita and Professor in the Graduate School, University of California, Berkeley, has published Law Reform in Early Modern England: Crown, Parliament and the Press (Hart Publishing):

This book provides an illuminating commentary of law reform in the early modern era (1500–1740) and views the moves to improve law and legal institutions in the context of changing political and governmental environments.

Taking a fresh look at law reform over several centuries, it explores the efforts of the king and parliament, and the body of literature supporting law reform that emerged with the growth of print media, to assess the place of the well-known attempts of the revolutionary era in the context of earlier and later movements. Law reform is seen as a long term concern and a longer time frame is essential to understand the 1640–1660 reform measures.

The book considers two law reform movements: the moderate movement which had a lengthy history and whose chief supporters were the governmental and parliamentary elites, and which focused on improving existing law and legal institutions, and the radical reform movement, which was concentrated in the revolutionary decades and which sought to overthrow the common law, the legal profession and the existing system of courts. Informed by attention to the institutional difficulties in completing legislation, this highlights the need to examine particular parliaments.

Although lawyers have often been seen as the chief obstacles to law reform, this book emphasises their contributions – particularly their role in legislation and in reforming the corpus of legal materials – and highlights the previously ignored reform efforts of Lord Chancellors.

--Dan Ernst

Second Call: Legal History on the Web

[We share the following message.]

Second Call for Information about Legal History Websites/Multimedia Projects for “Legal History on the Web”

Many of you may have had occasion to use “Legal History on the Web,” a gateway to online resources related to legal history that we started at Duke University in 2006.  This year we are undertaking a long-overdue update of the site, building on the platform first created by Mitch Fraas and revised by Ashton Merck, both working with and under the direction of Ed Balleisen.

We particularly invite suggestions for websites to include in a couple of new categories, as well as sites that engage with legal history outside the United States and the UK.

We are already well into the process of fixing broken links by updating URLs and revising annotations for existing websites where advisable.  If you know of any websites that require updates or that you think merit inclusion on “Legal History on the Web,” please send along the relevant information to Siobhan Barco, at siobhan.barco@duke.edu.

Please feel free to send along suggested text for annotations to any new links that you nominate for inclusion.  That suggested text needs to be short – just a few lines that encapsulate what the site has to offer legal historians (see current annotations for examples).

Existing Categories:

Other Web Gateways to Legal History
Library Research Guides/General Reference Resources
Primary Source Databases/Web Archives (likely to be renamed in some way to convey expansive digital legal history projects that include GIS mapping or other kinds of digital analysis in addition to primary sources).
Law & Popular Culture  (possibly to be discontinued unless we locate a sufficient number of relevant sites)
Chronologies
Journals
Publishers with Legal History Lists
Blogs
Workshops, Seminars, and Working Groups
Scholarly Associations and Networks
Graduate Programs in Legal History/Law and Society
Reading Lists
Syllabi  (sorely in need of updating – syllabi disappear more frequently than perhaps any other category on the site)
Fellowships
Grants
Prizes
Job Market for Legal History

New Categories:

•   Companion Websites to Legal History Books

(See for example, Ed Balleisen’s Suckers & Swindlers in American History, a companion site to his Fraud: An American History from Barnum to Madoff, which includes an extensive bibliography, essay about sources and methods, essay about avenues for future research, compilations of fraud-related slang, and much else besides.)

• Legal History Multimedia (e.g.) podcasts / documentaries)

Thanks for your crowd-sourcing help as we seek to refresh this resource for the legal history community.

 Ed Balleisen

Siobhan Barco

Berger-Howe Deadline Approaching

[We’ve earlier posted a version of this announcement, but because the deadline of February 15 is imminent, we’re reposting.  DRE] 

Harvard Law School invites applications for the Berger-Howe Fellowship for the academic year 2020-2021. Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree. A J.D. is preferred, but not required. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period.

Fellows are expected to spend the majority of their time on their own research. They also help coordinate the Harvard Law School Legal History Colloquium, which meets four or five times each semester. Fellows are invited to present their own work at the colloquium. Fellows will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2020-2021 should submit their applications and supporting materials electronically to Professor Bruce H. Mann (mann@law.harvard.edu).

Each interested applicant should submit:

• a detailed (five pages maximum) description of a proposed project,
• a writing sample,
• a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience, and
• copies of official transcripts of all academic work done at the graduate level. The applicant should arrange for two academic references to be submitted electronically. The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is February 15, 2020, and announcement of the award will be made by March 15, 2020.

The fellow selected will be awarded a stipend of $38,000.

The Rise and Fall of Heart Balm Actions for Intimate Deception: “Itching Palms in the Guise of Aching Hearts”

Why hasn’t the law regulating intimate deception attracted more scholarly attention?  One potential explanation is that unsuccessful lawsuits tend to generate less interest than successful ones, and most deceived intimates do not win in court.  Indeed, the remedies available for intimate deception have contracted significantly since the early twentieth century.  This post draws on my recent book, Intimate Lies and the Law, to explore how anti-heart balm legislation helps explain that change.

In the nineteenth and early twentieth centuries, some deceived women were able to obtain redress by using common law causes of action for seduction or breach of promise to marry.  These plaintiffs reported that they had been deceived into sex through false promises of marriage—promises men had made while never intending to carry them out.  Such deceit could cause substantial injury, especially for women left pregnant and unwed.

Starting with Indiana in 1935, however, a wave of state legislatures prohibited suits for seduction and breach of promise to marry.  The key argument behind this flurry of “anti-heart balm” legislation was that the women pursuing seduction or breach of promise claims were fraudsters concealing their “itching palms in the guise of aching hearts.”

Lawmakers presented no actual evidence that female plaintiffs were lying about their experiences.  Instead, legislators relied on circular logic.  The proof that women bringing seduction or breach of promise actions were dishonest graspers advancing “blackmail suits” was the very fact the women had sued.  After all, “self-respecting women” did not publicly accuse men of misconduct.

The reasoning that propelled anti-heart balm laws forward does not fare well in the light of modern scrutiny.  Yet these laws are not dusty relics.  Courts continue to rely on them when blocking litigation from deceived intimates.

In fact, courts have interpreted anti-heart balm laws expansively.  If you were once engaged and did not marry, courts typically will not let you sue your former fiancé for deceiving you about anything—even if it is unrelated to the broken engagement itself.  Some courts have interpreted statutory prohibitions on breach of promise to marry litigation so broadly that they use those prohibitions to dismiss litigation between people who actually married, where no promise to marry was breached at all.

In short, the enactment of anti-heart balm laws and their expansive interpretation help explain why we have fewer remedies for intimate deception than we did in the early twentieth century.  Judges invoke anti-heart balm laws to stop as much litigation over intimate deception as they can.

— Jill Hasday

Gerber on the Pilgrims, Law and Religion

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted Law and Religion in Plymouth Colony, which appears in the British Journal of American Legal Studies 8 (2019): 167191:

2020 marks the 400th anniversary of the planting of Plymouth Colony. Although the literature about Plymouth is voluminous, the discussion about law and religion has been inappropriately superficial to date. This Article addresses the Pilgrims’ conception of law on matters of religion and the new insights into the Pilgrims’ story that can be ascertained by focusing on law.

“Law” has been defined in many different ways by many different people throughout history. Aristotle, Cicero, Thomas Aquinas, and other proponents of natural law argued that law is the exercise of reason to deduce binding rules of moral behavior from nature’s or God’s creation. The renowned English positivist John Austin, in contrast, maintained that law is the command of the sovereign. To Friedrich Karl von Savigny and other proponents of the so-called historical school, law is the unconscious embodiment of the common will of the people. To the philosophical school, law is the expression of idealized ethical custom. The dominant contemporary view seems to be that law is the reflection of social, political, and economic interests.

For the Pilgrims of Plymouth Colony, law was both the memorialization of their commitment to the Word of God and an instrument for exercising social control so as to effectuate that commitment. The Pilgrims, of course, used law to regulate the more mundane aspects of life as well. Indeed, quantitatively speaking, more laws were enacted by the Pilgrims that addressed the day-to-day activities of life in Plymouth Colony than memorialized the Pilgrims’ commitment to eternal glory in the afterlife, but the latter was unquestionably more important, qualitatively speaking, than the former. In the oft-quoted words of a young William Bradford, “to keep a good conscience, and walk in such a way as God has prescribed in his Word, is a thing which I must prefer before you all, and above life itself.”

--Dan Ernst

Mortenson and Bagley on Delegation at the Founding

Julian Davis Mortenson and Nicholas Bagley, University of Michigan Law School, have posted Delegation at the Founding:

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, there was no constitutional problem with delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking of any sort. As a matter of practice, the early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

--Dan Ernst

Khosla on the Indian Constitution

Coming out this month by Madhav Khosla (Ashoka University) is India's Founding Moment: The Constitution of a Most Surprising Democracy with Harvard University Press. From the publisher:

Britain’s justification for colonial rule in India stressed the impossibility of Indian self-government. And the empire did its best to ensure this was the case, impoverishing Indian subjects and doing little to improve their socioeconomic reality. So when independence came, the cultivation of democratic citizenship was a foremost challenge.

Madhav Khosla explores the means India’s founders used to foster a democratic ethos. They knew the people would need to learn ways of citizenship, but the path to education did not lie in rule by a superior class of men, as the British insisted. Rather, it rested on the creation of a self-sustaining politics. The makers of the Indian Constitution instituted universal suffrage amid poverty, illiteracy, social heterogeneity, and centuries of tradition. They crafted a constitutional system that could respond to the problem of democratization under the most inhospitable conditions. On January 26, 1950, the Indian Constitution—the longest in the world—came into effect.

More than half of the world’s constitutions have been written in the past three decades. Unlike the constitutional revolutions of the late eighteenth century, these contemporary revolutions have occurred in countries characterized by low levels of economic growth and education, where voting populations are deeply divided by race, religion, and ethnicity. And these countries have democratized at once, not gradually. The events and ideas of India’s Founding Moment offer a natural reference point for these nations where democracy and constitutionalism have arrived simultaneously, and they remind us of the promise and challenge of self-rule today.

Advance praise for the book:

“Erudite, analytically dazzling, and with a rare understanding of both India’s and democracy’s challenges, Madhav Khosla’s India’s Founding Moment gives readers unparalleled access to the ideas behind India’s radical experiment in democratic constitution-making. As that noble vision is now under assault from sinister forces that Gandhi, Nehru, and Ambedkar knew well, we all should ponder Khosla’s all-too-timely book and do whatever we can to prevent the demise of India’s constitutional order.”—Martha C. Nussbaum

“This brilliant and challenging book shows how political choices—what to put in a constitution, the locus of effective power, and the forms of representation—can create citizens who can and must govern themselves in a modern democracy while facing deep challenges caused by poverty, caste, and illiteracy. It is at once a contribution to Indian constitutional history, constitutional theory, and political theory, and is a ‘must read’ for everyone in those fields.”—Mark Tushnet

“This is a sensitive analysis of the moral imagination behind the Indian Constitution, a document intended to free the democratic process from sectarian identities and to strengthen centralized state power. As Indian democracy struggles to stay on the rails, Khosla’s book is a timely reminder of what it was meant to be.”—Partha Chatterjee

Further information is available here.

--Mitra Sharafi 

Arvind and Burset's New Report of Entick v. Carrington

T. T. Arvind, York Law School, and Christian Burset, Notre Dame Law School, have posted A New Report of Entick v. Carrington (1765):

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation, and for more than 130 years, the Court has read Entick carefully to learn the original meaning of the Fourth Amendment. But the Court has been reading a flawed version of the case. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, as well as how this new discovery might challenge prevailing assumptions about the Fourth Amendment and Entick’s place in British and American constitutional history more broadly. Although we leave a full reevaluation of Entick for future scholarship, we show that any future judicial or academic discussion of the case must take this new report into account.

--Dan Ernst

New York University Legal History Colloquium: Spring 2020

The Legal History Colloquium at the New York University School of Law has announced its Spring 2020 lineup of presenters.

January 27: The Radicals' Fund: Experimenting with Democracy in America's First Age of Propaganda, John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law, Yale Law School

February 10: The Taft Court: Social and Economic Legislation, Robert Post, Sterling Professor of Law, Yale Law School

February 24: The Specter of Compensation: Mexican Claims Against the United States, 1923-1941, Allison Powers Useche, Clements Fellow, Southern Methodist University (2019-2020); Assistant Professor of History, Texas Tech University

March 9: The Democracy of Petitions: Popular Politics in Transformation, 1790-1870, Daniel Carpenter, Allie S. Freed Professor of Government, Faculty of Arts and Sciences, Harvard University; Director, Social Sciences Program, Radcliffe Institute for Advanced Study, Harvard University

April 13: International Arbitration and the Rise of an International Law Bar in Turn-of-the-Century America, Lael Weinberger, Berger-Howe Legal History Fellow, Harvard Law School

April 27: Cherokee Nation v. Georgia v. United States, Alison LaCroix, Robert Newton Reid Professor of Law, University of Chicago Law School

The colloquium is run by Professors David Golove and Daniel Hulsebosch. Sessions run from 4:10 to 6:00 p.m. in Vanderbilt Hall, Room 202.

-- Karen Tani

Intimate Lies and the Law

Karen Tani kindly invited me to spend February as a guest blogger.  I’ll be writing about my latest book, Intimate Lies and the Law (Oxford University Press 2019).  This post provides a brief introduction to my overall argument before subsequent posts delve into the legal history in the book.

Just in time for Valentine’s Day, Intimate Lies and the Law examines deception in dating, sex, marriage, and family life and explores the law’s response to this duplicity.

I argue that the law has devoted too much energy to shielding intimate deceivers and placed too little importance on helping the people they deceive.  Deceived intimates should have access to the same legal remedies they would have if they were equivalently deceived outside of intimacy.  The legal system should also do more to counter the incentives to deceive and should look for opportunities to thwart deceitful intimates from carrying out their plans.

In short, entering an intimate relationship should not mean losing legal protection from deceit.

I’m looking forward to blogging about the legal history in Intimate Lies and the Law.  Intimate deception is a fascinating topic—especially when it happens to someone else.

— Jill Hasday

Mawani at Queen Mary

[We have the following announcement.  DRE]

The School of Law, and the Centre for Law and Society in a Global Context, at Queen Mary University of London, are hosting Professor Renisa Mawani (q.v. here and here) for the first week of March 2020. Both events are free and everyone is warmly welcome.  Our two events with Professor Mawani are:

• On March 3, an interdisciplinary symposium on Professor Mawani’s award-winning, recent book, Across Oceans of Law, with a panel including Dr Luis Eslava (Kent); Professor Laleh Khalili (Queen Mary University of London); Professor Stewart Motha (Birkbeck); Dr Simon Layton (Queen Mary); and Dr Surabhi Ranganathan (University of Cambridge) 

• On March 5, the Cotterrell Lecture in Sociological Jurisprudence on "Turning Nationals into Foreigners: The Ingress into India Ordinance."

Fordham Constitutional History Workshop: Spring 2020

Via co-organizers Saul Cornell and Jed Shugerman, we have the lineup for the Spring 2020

Fordham Constitutional History Workshop.

Jan. 29: Workshop: Jed Shugerman and Ethan Leib, “Faithful Execution, Fiduciary Constitutionalism, and Good Cause Removal” (paper related to Selia v. CFPB, to be argued March 3, 2020)

Feb. 5: Workshop: Julie Suk, CUNY Graduate Center, chapter “We working women, because we are mothers”: Legacies of the 19th Amendment” from forthcoming book, We the Women: The Forgotten Mothers of the Equal Rights Amendment.

Feb. 12: Workshop: Keith Whittington, Princeton (Politics Dept), Constitutional Crises, Real and Imagined (selections from forthcoming book)

Feb. 19: Selections from Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s–1830s (2019)

Feb. 26: Workshop: Kunal Parker, U. of Miami Law, "Common Law Modernism: The Turn to Process in American Legal Thought, 1900 – 1970,” chapter from book manuscript on the idea of process in American legal, political, and economic thought (1900 - 1970)

March 4: Workshop: Jonathan Gienapp, Stanford History, selections from The Second Creation: Fixing the American Constitution in the Founding Era (2018)

March 11: Workshop: Felicia Kornbluh, University of Vermont, ‘Reproductive Rights and Justice Beyond Roe v. Wade: The View from 800 West End Ave’

March 25: Workshop: Nicholas Parrillo, Yale Law School, “Federal Tax Administration in the Early Republic.”

April 15: Workshop: Joanne Freeman, Yale History, selections from The Field of Blood: Violence in Congress and the Road to Civil War (2018)

All events are scheduled for Wednesdays, 2 to 3:50 PM, at Fordham Law School (Lincoln Center), Room 4-06. Contact the organizers for more information.

-- Karen Tani

Coffey on secession and the British Commonwealth

We missed this one in 2018: Donal K. Coffey (Max Planck Institute for European Legal History) published " 'The Right to Shoot Himself': Secession in the British Commonwealth of Nations," The Journal of Imperial and Commonwealth History 39:2 (2018), 117-39. Here is the abstract:

The ultimate test of whether an association is voluntary or not is if you can leave it. It is difficult, at this remove, to appreciate how live an issue secession from the British commonwealth of nations was in the 1920s and 1930s. It occupied an inordinate amount of time and negotiation for a doctrine that had been ostensibly conceded in 1920. Yet, much as with the case of the appeal to the judicial committee of the privy council, once the dominions sought to take advantage of the freedom which had been guaranteed by official statements, they found a formidable amount of diplomatic pressure and legal opinion brought to bear to indicate that no such right could be officially declared. This article traces the evolution of the arguments about the right to secede in the 1930s, and examines how the right came eventually to be exercised in the case of the new commonwealth countries in the 1940s. It concludes by examining how the doctrine of secession as developed in the 1930s was abandoned in order to retain Indian membership in the commonwealth.

Further information is available here.

--Mitra Sharafi

Ehighalua on the Tenth Amendment

Iseghohime Ehighalua, a doctoral candidate at the American University, Washington College of Law, has posted The Tenth Amendment: A Reflection:

The tenth amendment is both a legal and political toolkit for proponents on opposite sides of the national government vis-a-vis state rights divide. These binary, indeed, multi-visionary visions pervaded the U.S. Constitution making process, thus, the Founding Fathers debated these and other ideas intensely before drafting the Constitution. As a measure of this polarization, some of the ideas and rights that did not make it to the Constitution were subsequently reflected in amendments. This was how the tenth amendment found its way into the Bill of Rights and is today considered part of the Constitution. In this essay, I unpack the history of the tenth amendment and how the Founding Fathers argued for its inclusion in the Constitution. I identified James Madison and Alexander Hamilton as the two outstanding Fathers who championed the fight. This essay will demonstrate that the tenth amendment will always be at the intersection of how the executive and the legislative branches interpret their powers, and how either of the branches will use it to justify or undermine the very concept of representative government. As the tenth amendment envisaged that powers not delegated to the federal government or prohibited by it to the states are reserved to the states and the people, it must be jealously guided ultimately by the people, since democracy is envisioned as a system of government of, by, and for the people. I argue that the people must remain vigilant, as eternal vigilance is the price of liberty.

--Dan Ernst.  H/t: Legal Theory Blog

Heen on the Married Women Traders of Nantucket

Mary L. Heen, Professor of Law Emerita, University of Richmond, has recently published "Agency: Married Women Traders of Nantucket, 1765-1865," in the Georgetown Journal of Gender and the Law 21 (2019): 35-93:

Before the enactment of separate property and contract rights for married women, generations of married women in seaport cities and towns conducted business as merchants, traders and shopkeepers. The first part of this article shows how private law facilitated their business activities through traditional agency law, the use of powers of attorney, trade accounts and family business networks. These arrangements, largely hidden from public view in family papers, letters, and diaries, permitted married women to enter into contracts, to buy and sell property, and to appear in court. Private law, like equity, thus provided a more flexible alternative to the common law of coverture under agreements made within the family itself. On the other hand, public law proved much more restrictive for wives who were not part of a viable or harmonious marriage. In post-revolutionary Massachusetts, for example, the feme sole trader statute and various judicially adopted exceptions to the legal disabilities of married women under the common law applied only to certain wives abandoned by their husbands.

The second part of the article provides a case study of three generations of married women traders from Nantucket during the whaling era, the oil exploration business of its time. Their stories show how some married women, within the constraints of the law as it developed in Massachusetts without courts of equity, attained a form of autonomy in business or commercial activity at the same time that they fulfilled their family responsibilities. Their stories also uncover tensions underlying the first wave of women's rights reform efforts in the mid-nineteenth century, including the developing separation between work and home that continues to pose challenges for family law and for men and women today. In a broader sense, this historical study also illuminates the interaction among private law, public law, and evolving social practice as the law both reinforced and shaped family roles during a period of increased commercialization and industrialization.

--Dan Ernst

Weekend Roundup

• William & Mary Law School has a nice profile of Thomas J. McSweeney on the publication of his book, Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals.  An earlier interview is here.

• Over at the Talking Legal History, Siobhan M. M. Barco talks with Gregory P. Downs, University of California, Davis, about his book The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic (University of North Carolina Press, 2019). 

• The American Political Development blog A House Divided is running a symposium on Corey Robin's The Enigma of Clarence Thomas. Here's a recent post by Melissa Murray (New York University School of Law) on the importance of surfacing Thomas's historical views of the black matriarch, alongside his views of the black patriarch, and how "Thomas’s view of race, patriarchy, and conservatism converge in his understanding of reproductive rights."

• From HNN: Jennifer Wells, George Washington University, on her path to a professional career in history (after law school) and “some tips for current students considering graduate work in history and law.”

• Last Thursday, Touro Law sponsored a symposium on the life and legacy of Charles A. Reich. [KMT: I tweeted some threads about the presentations, available here.]

• Brenda Wineapple will speak on her book The Impeachers: The Trial of Andre Johnson and the Dream of a Just Nation at the Franklin Roosevelt Library and Museum at 4:00 p.m. on Wednesday, February 12, 2020.  Also, on February 15, the Library presents “Presidential Leadership: Lincoln & Roosevelt" with Harold Holzer and Craig Symonds.  More.

• From the Washington Post's "Made by History" Section: Robert L. Tsai (American University) on "How activists resisted — and ultimately overturned — an unjust Supreme Court decision"; William M. Treanor (Georgetown University Law Center) on how "Trump’s attorneys have butchered a crucial Founder’s take on impeachment"; Shobana Shankar (Stony Brook University) on why Mississippi can't fix its prisons, without recognizing "their dehumanizing, eugenic roots"; Christine Johnson (Washington University in Saint Louis) on why "Trump’s impeachment trial is no witch hunt"; and more.

• ICYMI: Supreme Court archives catalogue the history of Queens.  Ian Burney on the history of innocence at Stony Brook.  Berkeley Law removes Boalt's name (LA Times).

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

Center for the Study of Law & Society Speaker Series: Spring 2020

With apologies for the delayed posting, here's a link to the Spring 2020 lineup for the Center for the Study of Law & Society's terrific speaker series. Speakers of particular interest to our readers:

Monday, January 27 – DYLAN PENNINGROTH
Professor of Law and History, UC Berkeley
“Race and Contract Law”
For the event flyer, click here.

Monday, February 10 – CAITLIN ROSENTHAL
Assistant Professor of History, UC Berkeley
“Capitalism Where Labor was Capital: Slavery, Power and Price in Antebellum America”
For the event flyer, click here.
For the related paper, click here. 


Monday, March 30 – VICTORIA WOESTE
Research Professor, American Bar Foundation
“Practicing God’s Law in a Secular World: The Civil Rights Law Practice of the Rev. Fred W. Phelps, 1964-1989”

Do you know of other lectures or workshop series that we should take note of on the blog? Feel free to contact us! 

-- Karen Tani

Welcome, Jill Hasday!

We are delighted to announce a new guest blogger for the month of February: Professor Jill Hasday. 

Hasday is the Distinguished McKnight University Professor and the Centennial Professor of Law at the University of Minnesota Law School, where she teaches courses on anti-discrimination law, constitutional law, family law, and legal history. 

Her numerous articles have appeared in venues such as the Harvard Law Review, the Stanford law Review, and the New York University Law Review. She has also authored two books: Family Law Reimagined (Harvard University Press, 2014) and the hot-off-the-presses Intimate Lies and the Law (Oxford University Press, 2019). 

Amidst all this writing, she has made time for significant service to the field of constitutional history, editing the journal Constitutional Commentary.

Prior to entering academia, Professor Hasday clerked for Judge Patricia M. Wald of the United States Court of Appeals for the D.C. Circuit. She holds a J.D. from Yale Law School and a B.A. in History from Yale University.

For more information, including links to her writings, follow the link to her website.

Welcome, Jill Hasday!

-- Karen Tani

Thank you, Bianca Premo!

We are very fortunate to have had Professor Bianca Premo (Florida International University) as our guest blogger in January 2020. She was joined in several of her posts by Judith Mansilla and John Ermer (both of Florida International University). Here are these posts, all in one place:

• Paperless Law and Extrajudicial Legality
• Law and the Lettered City
• Copies and Originals, Premo
• More Than a Contract Part I, Premo with J. Mansilla
• More Than a Contract II, Premo with J. Mansilla
• Lo Extrajudicial, Premo
• Paperless Citizenship in Cuba, Premo with J. Ermer

Thank you all for sharing your insights on everything from improvised legal deals to modern citizenship cultures across Latin America!

--Mitra Sharafi

LHR Associate Editorship for The Docket

[We have the following announcement.  DRE]

Law and History Review, a leading journal of legal history, seeks an Associate Editor to edit its new The Docket .  The ideal candidate has a thorough knowledge of legal history and a strong grasp of communication through Wordpress, Twitter, and other social media and digital forums. Public historians are especially encouraged to apply.  The Associate Editor will be responsible for soliciting and publishing articles, interviews, and other items that mirror and expand on the content of issues of Law and History Review, as well as participating in editorial deliberations of the journal.  Editor-in-Chief Gautham Rao, and Associate Editors Angela Fernandez, Elizabeth Papp Kamali, and Jedidiah Kroncke will begin reviewing applications on March1 1, 2020 and expect to make an appointment by April 1, 2020.

To inquire or apply, please send a cover letter that explains your credentials, a C.V., and a list of three references (with name, title, mailing address, email address, and phone number) to Gautham Rao at grao@american.edu.

Law and History Review is published quarterly by Cambridge University Press for the American Society for Legal History.
digital imprint,

Resnik on "Ruinous" Punishments under the 8th Amendment

Judith Resnik, Yale Law School, has posted (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin,’ which appeared in The Yale Law Journal Forum:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states. The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.” Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment. In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment. I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance. I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent an-ti-ruination principle that all branches of government need to implement.

--Dan Ernst

Paperless Citizenship in Cuba, Premo with J. Ermer

The final of this month’s blog posts, which have focused on paperless law and extrajudicial legalities in Latin America, ventures out of the colonial and into the modern period. This is an unvarnished attempt to grab the attention of you avid LHB readers who might not relate immediately to the topics of verbal contacts among seventeenth-century religious brotherhoods and dowry conflicts. To hook you, I again enlist a co-blogger, this time Florida International University History PhD candidate John Ermer, who is writing a dissertation about the Syrian and Lebanese diaspora (mahjar) in twentieth-century Cuba.  I wanted to ask John some questions that connect paperless law to modern citizenship cultures. (cont'd)

Meese on Wickard and Antitrust

Alan J. Meese, William & Mary Law School, has posted Wickard Through an Antitrust Lens, which appeared in the William & Mary Law Review 60 (2019): 1336-1393:

For several decades, the Supreme Court employed the direct/indirect standard to police the boundary between mutually exclusive state and federal power over intrastate conduct affecting interstate commerce. Under this regime, Congress possessed exclusive authority over intrastate conduct that affected interstate commerce directly, leaving states with exclusive authority over intrastate conduct that produced only indirect effects. The Supreme Court read the direct/indirect standard into the Sherman Act during the 1890s, holding in United States v. E.C. Knight and other decisions that the statute only reached intrastate restraints that impacted interstate commerce directly. Impacts were direct, in turn, if the restraint exercised market power to the detriment of out-of-state consumers. Intrastate restraints that produced only indirect effects fell within the exclusive authority of the states.

Wickard v. Filburn famously jettisoned the direct/indirect standard in 1942, holding that Congress could reach any conduct that produced a “substantial effect” on interstate commerce, even if such effects were indirect or fortuitous. Later in the same decade, in Mandeville Island Farms v. American Crystal Sugar, the Court read Wickard’s substantial effects test into the Sherman Act, holding that the statute reached purely local restraints producing indirect but “substantial” impacts on interstate commerce.

Wickard offered three critiques of the direct/indirect standard, critiques echoed by Mandeville Island Farms. First, Wickard claimed that the Court had almost always applied the direct/indirect standard when reviewing Commerce Clause challenges to state legislation, only rarely employing the test to invalidate an Act of Congress as exceeding the scope of the Commerce power. Indeed, the Court claimed that only five post-E. C. Knight decisions had invalidated congressional statutes as exceeding the scope of the commerce power, three during a two year period (1935-36). Second, Wickard claimed that the direct/indirect standard was “mechanical” and obscured judicial inquiry into the actual economic impact of the conduct Congress sought to regulate. Third, Wickard claimed that decisions applying the direct/indirect standard during the first third of the 20th Century did so under the sway of the discredited E.C. Knight decision and had co-existed with a parallel set of decisions, beginning with the Shreveport Rate Case, that took a more expansive approach to congressional authority. This alleged doctrinal ambiguity attenuated the precedential force of decisions that had applied the direct/indirect standard. 

It is no surprise that Mandeville Island Farms and subsequent Sherman Act decisions drew upon Wickard when discerning the scope of the Sherman Act vis a vis local restraints. This essay “flips the script” and asks “what if” Wickard had looked to Sherman Act precedents for guidance regarding the scope of the Commerce power. The essay contends that the Court’s experience with application of the direct/indirect standard in the antitrust context undermines Wickard’s critiques of that regime. For instance, inclusion of the Court’s antitrust federalism case law more than doubles the number of pre-Wickard decisions that refused to apply a federal statute to conduct generating a substantial economic effect on interstate commerce, thus falsifying Wickard’s claim that only two decisions between E.C. Knight and the New Deal enforced limits on Congressional power. Moreover, the antitrust federalism decisions were not “mechanical” or otherwise insensitive to the actual economic effects of challenged conduct. Instead, each such decision reflected a fact-intensive effort to determine the actual impact of the conduct in question, asking whether the restraint visited harm on citizens in other states. Finally, the Court’s pre-Wickard antitrust federalism decisions rarely cited E. C. Knight, and then only for the purpose of distinguishing or narrowing the decision so as to allow the Sherman Act to reach intrastate transactions producing interstate harm. These decisions were fully consistent with the Shreveport Rate Case, which held that Congress could preempt state regulation of intrastate rates that threatened to “injure” interstate commerce, by “directly interfering” with interstate rates. Indeed and ironically, a thorough understanding of the Court’s pre-New Deal antitrust federalism decisions helps generate a more enduring and plausible rationale for the result in Wickard, a rationale that does no violence to the constitutional order that Wickard repudiated.

--Dan Ernst.  H/t: Legal Theory Blog

"The Public's Law" Symposium: Emerson Responds

 [This is the third of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  The series begins here, with my summary of the book and continues with Noah Rosenblum's comment.  What follows is the response of Blake Emerson, Assistant Professor of Law at UCLA.  DRE.]

It is an honor to have the opportunity to continue discussing The Public’s Law here on the Legal History Blog. The author-meets-readers panel that Dan Ernst, Anne Kornhauser, Noah Rosenblum, and I participated in at the American Society for Legal History Conference was a great occasion to discuss the book with scholars whose work and insights shaped the argument. Here I’d like to continue that conversation, focusing on a few key issues: the motivation for the book, the role of Hegelian ideas in American Progressivism, and the promise of studying legal history from a normative perspective.

Ayoub's "Law, Empire, and the Sultan"

Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Hanafi Jurisprudence, by Samy A. Ayoub, an Assistant Professor of Law and Middle Eastern Studies at the University of Texas at Austin, has been published by Oxford University Press in its series Oxford Islamic Legal Studies:

This book is the first study of late Hanafism in the early modern Ottoman Empire. It examines Ottoman imperial authority in authoritative Hanafi legal works from the Ottoman world of the sixteenth to nineteenth centuries CE, casting new light on the understudied late Hanafi jurists (al-muta'akhkhirun). By taking the madhhab and its juristic discourse as the central focus and introducing "late Hanafism" as a framework of analysis, this study demonstrates that late Hanafi jurists assigned probative value and authority to the orders and edicts of the Ottoman sultan. This authority is reflected in the sultan's ability to settle juristic disputes, to order specific opinions to be adopted in legal opinions (fatawa), and to establish his orders as authoritative and final reference points. The incorporation of sultanic orders into authoritative Hanafi legal commentaries, treatises, and fatwa collections was made possible by a shift in Hanafi legal commitments that embraced sultanic authority as an indispensable element of the lawmaking process.

--Dan Ernst

"The Public's Law" Symposium: Rosenblum Comments

[This is the second of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  My summary of the book on that occasion is here.  Below is a slight revision of the comment Noah A. Rosenblum delivered at session.  Mr. Rosenblum is a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law.  DRE.]

Blake Emerson's The Public's Law is a significant intervention that deserves the attention of legal historians in particular.  It was born as a dissertation in political theory.  But we should not hold that against it.  Except for its last chapter, the work is completely given over to history.  Although framed as a normative argument of historical recovery, it intervenes in two important historical debates of special interest to our community.  First, The Public's Law suggests a new dimension to the world of "Atlantic Crossings" in the late 19th and early 20th century that intellectual historians like James Kloppenberg and Dan Rodgers helped frame nearly 30 years ago.  And second, it contributes to ongoing conversations about how we understand the nature and development of the administrative state-and so speaks to both political historians interested in the history of the Progressive Era, the New Deal, and the Civil Rights years, and legal historians writing the new history of administration and administrative constitutionalism.  I'll have more to say about these historiographical interventions later.  For now, I just want to hammer on this book's relevance for legal history.  The Public's Law is more explicit about its normativity than most historians like.  And, because of the disciplinary divisions of the academy, it comes dressed up as a book that's more for philosophers or lawyers.  But it is decidedly a book that intellectual, political, and legal historians will have to grapple with.

I'd like to focus this contribution on three specific arguments advanced in The Public's Law.  Ernst's post has already explained how Emerson traces the way German Hegelianism worked its ways into the thought of leading Progressive reformers, and, through them, into some of the basic structures of American government.  I want to zero-in on three moments in this progression, and highlight how the argument advanced in The Public's Law challenges our received understandings: (1) first, its account of the meaning and ramifications of Hegelianism, (2) second, its description of the legacy of the Hegelian reception in the United States, and (3) third, its reading of the New Deal and the Civil Rights reforms.

Freidenfelds on miscarriage in America

Lara Friedenfelds (independent scholar) has published The Myth of the Perfect Pregnancy: A History of Miscarriage in America with Oxford University Press. The book includes a chapter on abortion (ch.6) that will be of special interest to legal historians. From the publisher:

When a couple plans for a child today, every moment seems precious and unique. Home pregnancy tests promise good news just days after conception, and prospective parents can track the progress of their pregnancy day by day with apps that deliver a stream of embryonic portraits. On-line due date calculators trigger a direct-marketing barrage of baby-name lists and diaper coupons. Ultrasounds as early as eight weeks offer a first photo for the baby book.

Yet, all too often, even the best-strategized childbearing plans go awry. About twenty percent of confirmed pregnancies miscarry, mostly in the first months of gestation. Statistically, early pregnancy losses are a normal part of childbearing for healthy women. Drawing on sources ranging from advice books and corporate marketing plans to diary entries and blog posts, Lara Freidenfelds offers a deep perspective on how this common and natural phenomenon has been experienced. As she shows, historically, miscarriages were generally taken in stride so long as a woman eventually had the children she desired.

This has changed in recent decades, and an early pregnancy loss is often heartbreaking and can be as devastating to couples as losing a child. Freidenfelds traces how innovations in scientific medicine, consumer culture, cultural attitudes toward women and families, and fundamental convictions about human agency have reshaped the childbearing landscape. While the benefits of an increased emphasis on parental affection, careful pregnancy planning, attentive medical care, and specialized baby gear are real, they have also created unrealistic and potentially damaging expectations about a couple's ability to control reproduction and achieve perfect experiences.

The Myth of the Perfect Pregnancy provides a reassuring perspective on early pregnancy loss and suggests ways for miscarriage to more effectively be acknowledged by women, their families, their healthcare providers, and the maternity care industry.

Praise for the book: 

"This lively and informative book is simultaneously an exploration of contemporary 'mommy blogs' and a deeply researched history of childbirth in America. By focusing on the history of miscarriage, it casts new light on almost every aspect of our modern reproductive system, from technological innovations like sonograms to the semantics of abortion debates. It is an innovative and powerful contribution to history and to present-day discourse on childbearing." -- Laurel Thatcher Ulrich

"Bravo! Freidenfelds has delivered a formidable and gripping account of pregnancy loss in America. She weaves the voices of women today and generations past with keen historical and scientific insights. The Myth of the Perfect Pregnancy shines a much-needed light on miscarriage, a subject that has, until now, been hidden from both casual conversations and scholarly scrutiny." -- Randi Hutter Epstein

"Freidenfelds captures the dramatic transformation of the ideal of pregnancy over the past two hundred years, from a normal, accepted part of a colonial woman's life to the highly monitored, commercialized, and emotional-laden experiences of 21st century women. With sensitivity and care she explores the experience of pregnancy loss, which remains a common yet rarely publicly discussed occurrence." -- Rima D. Apple

"The Myth of the Perfect Pregnancy offers far more than a meticulously researched historical perspective on reproductive health and parenting attitudes. It also provides critical insight to the present, with a lesson that much of childbearing and childrearing is out of our control, to expect and accept the ups and downs of life and the inevitable mistakes we will make as parents. Freidenfelds has used facts to illustrate how our perfectionist parenting standards came about, so that we may forgive ourselves our imperfections. This is a message many parents, myself included, need to hear and be reminded of. Freidenfelds' work can help shift the current culture of parenting, and we will all benefit." -- Monique Tello

Further information is available here. 

--Mitra Sharafi

Lefstin on the American Misunderstanding of a Leading English Patent Case

Jeffrey A. Lefstin, University of California Hastings College of the Law, has posted Neilson v. Harford: Shape and Form in Patent Law, which is forthcoming in the Research Handbook on Creativity, Entrepreneurship, and Intellectual Property: Comparative Perspectives on Forgotten Legal Lore:

Neilson v. Harford has cast a long shadow over patent law. For American courts in the nineteenth century, the 1841 case from the Court of Exchequer was an authority whose “correctness has never been doubted and denied.” More recently, Neilson served as the ostensible authority for some of the Supreme Court’s most significant changes to the doctrine of patent eligibility under § 101. Parker v. Flook took from Neilson the notion that fundamental principles cannot contribute to the patent-eligibility of a claim, and Mayo v. Prometheus relied on Neilson to support its requirement for unconventional application of new discoveries.

Drawing on a complete account of the Neilson trial that has never been examined by legal scholars, this chapter shows that the true story of Neilson v. Harford is very different than the one told by the Supreme Court. The Court of Exchequer never treated fundamental principles as part of the prior art, nor did it require inventive application of new discoveries; Neilson’s patent was sustained largely because discovery required only well-known, routine, and conventional means for application. The central question in Neilson was to what extent Neilson’s invention – and by extension patents in general – were bound by shape and form.

The Exchequer’s conclusion that Neilson’s patent transcended form was key to three of the Supreme Court’s foundational nineteenth century cases: Winans v. Denmead’s extension of infringement beyond the patentee’s embodiment; Tilghman v. Proctor’s separation of a process from its instrumentalities; and O’Reilly v. Morse’s delineation of the outer bounds of enablement. In particular, the Morse Court’s contrast between Neilson’s invention and Morse’s illustrates that Morse was based on conventional enablement reasoning, not on the unpatentability of scientific discoveries.

--Dan Ernst