Thank you, Tamar Herzog!

Many thanks to Tamar Herzog for her thoughtful guest posts on European legal history and many other things in January 2019! For your convenience, here they are all in one place:

• On Turner's Westward March from a Different Perspective
• Roadmap to My Blogging Month
• Does European Law Have a History?
• English Legal Exceptionalism Revisited: English vs. Common Law
• English Exceptionalism Revisited II--The Continental Strawman
• An Unplanned Interlude on Reading (and Writing) Recommendation Letters
• Citizenship, Naturalization, and Belonging: Attempting a Comparative Legal Research
• European or Global? Secular or Religious? How (Some) European Jurists Re-Consider the Past
• On the Indigenous Experience in the Americas
• A Third Interlude: Presenting the Same Book to Different Audiences
• On Scholarship and Productivity--a Farewell to the Legal History Blog and a Confession

Please join us in thanking Professor Herzog. Stay tuned for a continuing line-up of great guest bloggers in 2019.

A Third Interlude: Presenting the Same Book to Different Audiences

I just returned from Paris, where I presented in the École de Droit of Sciences Po my most recent book on the history of European Law. This was the fifth time, in which I presented this book, the previous opportunities being the Law Faculty of the Universidade Nova of Lisbon, The departmental seminar of the European University Institute (the graduate school of the European Union), the joint PhD program of the University of Florence and Siena, The Annual Meeting of the American Society for Legal History (hurray!), and now Paris. As I flew back over the Ocean, I was thinking about how different each of these experiences was. 

In Lisbon, the session was mainly attended by law students. The students – who obviously read the book— wanted to know how I situated myself. They asked to which school of thought I belonged and how I distinguished myself from other scholars. They also wanted to know how Portugal would be inserted into my narrative. Did I not believe in the existence of nations? (I do not). Did I not think that European law was different, even superior, to law elsewhere? (I do not). The session at the European University Institute was mostly attended by jurists and historians. Many of them are involved in the construction of Europe through historical research but also through legal work, and they mainly wanted to know why I identify my object of study as “European Law” (for many Europeans this term designates the Law of the European Union). They also asked how I chose what to concentrate upon (in terms of subject matter but also geographical coverage), and what putting together England and the Continent taught me. In the Joint PhD, students and faculty were particularly interested to hear my views as to whether law was an important element everywhere, always, and in all regards. Do historians need to take it into account? In what ways? How can they? Participants in Italy also asked how (and what) we can know about the legal past. Many of their questions were directed at methodology: What can be learned from which type of sources and how does one piece together into a coherent narrative the multiple fragments of information that the archives contain. At the Annual Meeting, three commentators discussed the book. Their comments were mostly directed at posing questions about choice and selection. One of the commentators also discussed how my work could be situated among the various schools engaged in doing European legal history. In Paris, the public included both law professors and political scientists. They were particularly interested in the “big picture:” How law interacted with society and society with law, how European were the developments I described, and whether law was fixed or contingent, enduring or constantly changing. Listeners also wanted to hear more about how I selected what to write about and why certain important features of European law were absent. What was Europe came up several times, as did the question whether I intended to reproduce existing narratives or question them. Is law something that exists objectively or is it what jurists tell us it is, that is, a narrative that they, the jurists, can (and often do) constantly change?  

These differences can of course be fortuitous and depend on the accidental group of people that happened to gather that very same day, but my impression is that at least some of them had to do with distinct academic traditions of reading and discussing, as well as with the preoccupations of distinct listeners of distinct disciplines. I often tell students that no reader is ever faithful to a book. I certainly am not. I read books with my own questions in mind and looking for the information I most desire to find. As a result –as often happens to me with films or fiction books I really like —I can read the same book over and over again, each time seeing it differently or getting other things from it.  As Ruiz Zafón, a Spanish novelist, once said, because books are labyrinths, we need to find our own path in order to transit through them. And, as we do, we often discover what we already possess.  This voyage of discovery is ours, not the author's, and no author can ever control it.

ASLH Panel Recap: The Administrative State at the Grassroots

[Smita Ghosh, JD, Class of 2014, and PhD Candidate, American Legal History, at the University of Pennsylvania, has provided us with a recap of a second ASLH panel, "The Administrative State at the Grassroots."  The panelists were (1) Eric L. Muller, the Dan K. Moore Distinguished Professor in Jurisprudence at the University of North Carolina School of Law; (2) Sarah Milov, an assistant professor in the Corcoran Department of History at the University of Virginia; and (3) Joanna Grisinger, Associate Professor of Instruction and Director of Undergraduate Studies in the Center for Legal Studies at Northwestern University.  I chaired and commented.  Here is Ms. Ghosh’s report.  The text of my comment and an addendum follow after the jump.]

Eric Muller’s “Looking at Japanese American Imprisonment through a Law Office Window” is a microhistory of legal contests at a Japanese internment site in Wyoming.  Project Attorneys for the War Relocation Agency (WRA), who acted as all-purpose lawyers in Japanese internment camps.  They served as representatives for camp directors and internee organizations, and also gave legal aid to particular detainees in low-level disputes.  While historians have seen these officers as embodiments of the government’s exclusionary impulse--”assimilationists” at best, abusive racists at worst--this paper found more nuanced story.  Project Attorneys often ignored explicit directives from Washington in order to accommodate the desires of detainees.  At one point, a cuckolded man assaulted another detainee who had been sleeping with his wife.  Officials in Washington, who monitored the attorneys in weekly correspondence, urged the Project Attorney to contact state officials to press charges.  But the attorney pushed back, convinced by the perception among the detainee “community” that the assault was justified.  In the end, the lawyer handled the case in house,  suggesting the negotiability of legal practices on the ground. 

In Sarah Milov’s paper, “Clearing the Air: Shimp v. New Jersey Bell and the Strange Politics of Workplace Smoking,” the original sin is not imprisonment but a little secondhand smoke.  The protagonist is an aggrieved plaintiff, rather than a government lawyer, but processes are similarly negotiable (we are, after all, in the grassroots).  The paper focuses on Donna Shimp, an employee of Bell Telephone who developed serious health problems after working in a smoke-filled office in the early 1970s. When Bell was unresponsive to her complaints--instead putting her on unpaid leave--Shemp became an anti-smoking activist.  She drew from a set of newly available resources to develop her complaints: agencies like the EPA and OSHA and their state counterparts, as well as newly formed anti-smoking advocacy groups.  Eventually, she sued the company in state court with the help of a Rutgers Law professor and his employment law clinic.  The suit pitted Shimp against her union, which had only ten years before earned its members the right to smoke at work.  After winning an injunction against Bell, Shimp developed a non-profit consulting company to help non-smokers advocate for similar changes on the job.  Despite the success of the suit, Shimp’s work focused on the bottom-line (and, as someone mentioned in Q&A, a gendered language about protection).  Employers of tobacco-toting TAs should take note: Smokers waste 2-10% of the workday on cigarette breaks. 

Joanna Grisinger’s paper, “‘The self-containment of the bureaucracy’: The Civil Aeronautics Board and the Right to Participate,” offered a grassroots-level view of public participation in agency processes.  The agency in question is the Civil Aeronautics Board, which was empowered to both regulate and promote the American airline industry.  This dual mandate made the liberal public participation provisions of the CAB’s statutory mandate fairly hollow. The agency rarely took the public’s input very seriously.  Instead, it was overwhelmed by public complaints, captured by greedy airlines and distracted by their orders to boost the industry.  But activists were still moved by the power of participation.  Activists interested in civil rights, environmentalism and dismantling Apartheid all complained to the Board in one way or another.  In this way, as Dan Ernst noted in his comments, Grisinger showed the optimistic tone of the early participation movement.

In his comments, Ernst reflected on his own work on the NRA in the 1930s and ’40s.  From this vantage point, he was able to assess the changing nature of administration  over the years.  In Ernst’s era, it was agencies that made the more “adventurous” legal arguments towards hostile and conservative courts. But by the 1970s things were different: Courts--like the NJ Superior Court in Shimp--were at the forefront of legal change, while agencies were slow to act, perhaps desiring political cover.  It was an apt time for Ernst's New Deal era film reference: We weren't in Kansas anymore.

[My comment and an addendum prompted by the Q&A appear after the jump.]