O'Brien on abortion in Mexican history

 Elizabeth O'Brien (Johns Hopkins University) published the following article this past fall: "The many meanings of aborto: pregnancy termination and the instability of a medical category over time," Women's History Review (published online: 27 Oct. 2020). Here's the abstract: 

This article sheds light on an important facet of the history of abortion in Mexico: that is, moments in which doctors and priests reconciled the termination of pregnancy with religious ideologies, thus refracting the concept of abortion through a Catholic lens at different points in time. By underscoring ambivalences in the definition, implementation, and criminalization of abortive procedures, the research demonstrates that Mexican physicians periodically renamed or reconceptualized abortive procedures, thereby legitimizing them while constructing and reimagining the meaning of abortion itself. This allowed doctors to make fertility control compatible with religious ideologies and therefore legible to a range of spiritual and state authorities, but generally without overt challenges to Catholic claims about fetal life. The article argues that these historical cultures of Catholicized abortion—or, to use Morgan and Roberts’s term, ‘regime[s] of moral governance’—laid the historical groundwork for today’s chasm between practice and law.

Further information is available here.

--Mitra Sharafi

Fisk and Salter on the Law of Playwrights and Theatre Producers

Catherine Fisk, University of California, Berkeley School of Law, and Brent Salter, Stanford Law School, have posted Assumptions about Antitrust and Freelance Work and the Fragility of Labor Relations in the American Theatre, which is forthcoming in the Ohio State Law Journal:

Lee Shubert (NYPL)

As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience with freelance work. Yet the Dramatists Guild and commercial theatre producers have negotiated collectively for nearly a century under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era. The revival of theatre after the catastrophe of the pandemic provides an opportunity to reconsider the four longstanding but unnecessary assumptions about antitrust, labor law, and copyright law that have shaped organizational structures and mediated relations between stage producers and writers:

Assumption #1: Playwrights, unlike actors or directors, cannot unionize under the National Labor Relations Act because playwrights are independent contractors.

Assumption #2: Playwrights must have the legal status of independent contractors under federal labor law, lest they lose control of the copyrights in their work under the work for hire provisions of the 1976 Copyright Act.

Assumption #3: Unionization of playwrights is not merely unprotected by the National Labor Relations Act (see Assumption #1), but it is affirmatively prohibited by federal antitrust law.

Assumption #4: The precarious legal status of playwrights as outlined in Assumptions 1-3 is necessary to protect their creative autonomy. Whatever economic security and stability writers could attain if the Dramatists Guild were a union and if there were real collective bargaining would be at the cost of dramatists’ creative freedom, independence, and ability to prevent the rewriting of their work. In short, to be a real artist, a dramatist necessarily must run the risk of being impecunious.

This article offers a detailed history, based on previously unavailable archival sources, of the origin of these assumptions, and how writers, producers, and various intermediaries struggled to create a functional system in the face of legal doubt. The history shows why it is time to abandon the assumptions about the significance of antitrust and copyright law in structuring relations between writers and producers.

--Dan Ernst

ASLH Student Research Colloquium 2021

 [We have the following call for applications.  DRE]

ASLH Student Research Colloquium 2021

The American Society for Legal History (ASLH) will host a Student Research Colloquium (SRC) on Wednesday, Nov. 3, and Thursday, Nov. 4, 2021, in New Orleans, Louisiana.  The SRC annually brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress dissertations and articles, under the guidance of distinguished, ASLH-affiliated scholars.

Target applicants include early-post-coursework Ph.D. students and historically minded law students.  Students working in all chronological periods and all geographical fields are encouraged to apply.  Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have not yet received any formal training in legal history.  A student may be on the program for the annual meeting and participate in the SRC in the same year.

Each participating student will pre-circulate a paper to the entire group.  At the colloquium, faculty directors will lead discussions of  these papers.  

The ASLH will provide at least partial and, in most cases, total reimbursement for travel, hotel, and conference-registration costs.  This year, one SRC participant will be awarded the Herbert Johnson Fellowship, named for a distinguished legal historian and past-president of the ASLH. 

To apply, please submit the following three items to John Wertheimer at srcproposals@aslh.net:

• a cover letter, describing, among other things, how far along you are and approximately how many years remain in your course of study;

• an up-to-date CV; and

• a two-page, single-spaced research statement that begins with a title and proceeds to describe the in-progress research project that you propose to present at the colloquium.

Application deadline: June 1, 2021.

Sahner on Zoroastrian law

 Christian C. Sahner (University of Oxford) has published the following article: "Zoroastrian law and the spread of Islam in Iranian society (ninth-tenth century)," Bulletin of the School of Oriental & African Studies (2021). Here's the abstract: 

This article explores three important Zoroastrian legal texts from the ʿAbbasid period, consisting of questions and answers to high-ranking priests. The texts contain a wellspring of information about the social history of Zoroastrianism under Islamic rule, especially the formative encounter between Zoroastrians and Muslims. These include matters such as conversion, apostasy, sexual relations with outsiders, inheritance, commerce, and the economic status of priests. The article argues that the elite clergy responsible for writing these texts used law to refashion the Zoroastrian community from the rulers of Iran, as they had been in Late Antiquity, into one of a variety of dhimmī groups living under Islamic rule. It also argues that, far from being brittle or inflexible, the priests responded to the challenges of the day with creativity and pragmatism. On both counts, there are strong parallels between the experiences of Zoroastrians and those of Christians and Jews, who also turned to law as an instrument for rethinking their place in the new Islamic cosmos. Finally, the article makes a methodological point, namely to show the importance of integrating Pahlavi sources into wider histories of Iran and the Middle East during the early Islamic period.

Further information is available here.

--Mitra Sharafi 

Weekend Roundup

• Brandon R. Byrd, assistant professor of history, will deliver the next lecture in Vanderbilt Law School’s Dean’s Lecture Series on Race and Discrimination on Thursday, March 18, beginning at noon CT.  More.
  

• The deadline for submitting panel proposals for ASLH 2021 in New Orleans is March 15.
  

• ICYMI:  Ann Williams’s freedom suit (Hyattsville Wire).  How a 1946 dispute over a broken radio in Tennessee helped spark the civil rights movement (USA Today).  Scott Simon, Will Smith, and Larry Wilmore on "Amend" (NPR).
  

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

Yale Journal of Law & the Humanities 31:2 -- on "History, Ideology, and the Crisis of Legal Critique"

The latest issue of the Yale Journal of Law & the Humanities looks to be of particular interest to LHB readers. Here's the Table of Contents:

Introduction: History, Ideology, and the Crisis of Legal Critique
Justin Desautels-Stein and Samuel Moyn

If the Music Hadn’t Stopped, or Reflections on the Great Kerfuffle: Historicism’s Continuing Grasp for Truth
John Henry Schlegel

Quentin Skinner v. Charles Taylor: Explanation and Practical Reasoning in History, Philosophy, and Law
Charles Barzun

Law in Time: Legal Theory and Legal History
Paulo Barrozo

The Architecture of Critique
Elizabeth S. Anker

Critical Legal Studies and Marx’s Critique: A Reappraisal
Rob Hunter

The Specter of Eurocentrism in International Legal History
Ntina Tzouvala

Deep Cuts: Four Critiques of Legal Ideology
Justin Desautels-Stein and Akbar Rasulov

Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board
Megan Ming Francis and John Fabian Witt

-- Karen Tani

Marilyn Blatt Young Dissertation Completion Fellowship

[We have the following announcement from the Society for Historians of American Foreign Relations.  DRE]

Marilyn Blatt Young Dissertation Completion Fellowship

SHAFR invites applications for its dissertation completion fellowship. SHAFR will make one year-long award in the amount of $25,000 each, to support the writing and completion of the doctoral dissertation in each academic year. This highly competitive fellowship will support the most promising doctoral candidates in the final phase of completing their dissertations. Membership in SHAFR is required.

Applicants should be candidates for the PhD in a humanities or social science doctoral program (most likely history), must have been admitted to candidacy, and must be at the writing stage, with all substantial research completed by the time of the award. Applicants should be working on a topic in the field of U.S. foreign relations history or international history, broadly defined, and must be current members of SHAFR.

Because successful applicants are expected to finish writing the dissertation during the tenure of the fellowship, they should not engage in teaching opportunities or extensive paid work, except at the discretion of the Fellowship Committee. At the termination of the award period, recipients must provide a one page (250-word) report to the SHAFR Council on the use of the fellowship, to be considered for publication in the society newsletter. The submission packet should include:

    A one page application letter describing the project’s significance, the applicant’s status, other support received or applied for and the prospects for completion within the year.
    A three page statement of the research
    A curriculum vitae
    A letter of recommendation from the primary doctoral advisor.

The research statement should run no longer than three double-spaced pages; statements exceeding this limit will not be reviewed. The letter may be single-spaced. Both the letter and statement should be formatted with 1-inch margins and 12 point font, Times New Roman preferred.

ONLINE APPLICATION

Questions can be sent by electronic mail to dissertation-fellowships@shafr.org.

The annual deadline for submissions is 1 April.

Fellowship awards will be decided by around May 1 and will be announced formally during the SHAFR annual meeting in June, with expenditure to be administered during the subsequent academic year.

The Fellowship Committee: Vanessa Walker, Ilaria Scaglia, Tore Olsson

Riedlberger and Niemöller on Krüger, Mommsen and the Theodosian Code

We note the publication, open access, of the monographic article “Paul Krüger, Theodor Mommsen, and the Theodosian Code,” by Peter Riedlberger and Isabel Niemöller, in Roman Legal Tradition 17 (2021), 1–112.  Here is the editor’s summary:

A very revealing set of correspondence between Theodor Mommsen and Paul Krüger is at the center of this fascinating article on the preparations for Mommsen’s edition of the Theodosian Code. Peter Riedlberger and Isabel Niemöller narrate the fraught relationship between the two great scholars: Krüger hoping to have his preparatory work used and acknowledged, Mommsen having a very different vision of the ultimate project and ultimately deciding to go it alone. Riedlberger and Niemöller burst many bubbles – e.g. that Mommsen’s powers were failing and that he appropriated Krüger’s work – but also use the correspondence to illustrate the widely misunderstood relation among the different sources for the Theodosian Code, above all relating to those texts which appear, sometimes profoundly altered, in the Codex Justinianus. The authors also make the case for a new edition of the Theodosian Code.

The article includes a transcription and English translation of 29 items of correspondence – published for the first time – interleaved with summaries of other correspondence and key facts from this monumental period in the history of Roman law scholarship.  

–Dan Ernst

CFP: British Crime Historians Symposium

 [We share the following Call. Submissions are due by 28 May 2021.]

Call for Papers: British Crime Historians Symposium 2021

2 – 3 September 2021

Online event hosted by the Centre for Criminal Justice Studies in the School of Law, University of Leeds.

The British Crime Historians Symposium meets regularly to discuss and debate original historical research on all aspects of crime, policing, punishment, law, criminal justice and social regulation.

Since the first meeting in 2008, the BCHS has become a leading academic forum in this broad and vibrant field of research. The 2020 event had to be cancelled due to the coronavirus and will instead be hosted on the 2-3 September 2021. For the first time in its history, it will be hosted fully online on Zoom. It will feature a keynote presentation from Professor Randolph Roth (Ohio State University) and other plenary sessions still being arranged. This year’s conference is hosted by the Centre for Criminal Justice Studies in the School of Law, University of Leeds.

The conference welcomes proposals for papers, panels and other sessions concerned with the history of crime and criminal justice, especially (though not exclusively) in connection with Britain and its former colonies. Papers on all topics and periods within this broad remit are welcomed.

Submissions are encouraged from researchers across a wide range of disciplines (including, but not limited to, history, criminology, law, socio-legal studies and sociology). Submissions are also encouraged from researchers based around the world and, where necessary, we will endeavour to schedule sessions at times that are amenable to the presenters. Submissions from Postgraduate Researchers and Early Career Researchers are especially welcomed. Postgraduate presenters will be invited to submit their papers for the Clive Emsley Prize, awarded for the best postgraduate paper at the conference.

As the event will be wholly online, we invite proposals for papers in the following formats:

1. Individual Presentations

• Research Project Report. Short (max. 5 minutes) presentations which report on the progress of a specific research project. This should be especially suitable for those in the early stages of PhDs or other large projects.

• PechaKucha Presentation. Presenters have 20 slides and 20 seconds to talk about each slide. The total length of a PechaKucha presentation is 6 minutes 40 seconds. Again, this is a good format for those in the early stages of a project or for those who wish to succinctly summarise a key finding or argument.

• If you wish to submit a proposal for an individual presentation, please provide an abstract of no more than 200 words. Please also include: title, name(s) of author(s), institutional affiliation (if applicable) and email address (of proposing author).

 

2. Panel Presentations

• Panel of standard papers. Individual papers of 15 minutes. Up to 4 per panel. Panels of papers should relate to an overall theme. Panels must be put together by those submitting the proposal.

• Panel of PechaKucha papers. If presenters would prefer, they can propose to present thematically related papers in a PechaKucha rather than the standard format.

• If you wish to submit a panel proposal, please provide the abstracts of all panel papers (up to 200 words each) plus individual paper titles, name of authors, institutional affiliations and email address (of proposing author). In addition, please provide a panel title, a panel abstract (150 words maximum) and the name of the proposed panel chair.

 

3. Other Sessions

• Roundtable Discussion. You are invited to submit a theme for a roundtable discussion. These roundtable discussions should last for one hour. If selected, a chair and two discussants will be identified for each roundtable.

• Workshops. Proposals for workshops on topics of common relevance are invited (e.g. methods, ethics, writing for publication, doing public engagement etc). These can be up to 90 minutes in length. There is no set format that a workshop must adopt. It could be presenter-led, feature a panel of presenters, or be practically-driven etc.

• If you wish to propose a roundtable discussion or workshop session, please submit: session title, session objectives (3-5 objectives capturing what you plan to do) and a session overview (max. 200 words explaining the rationale of the proposed session).

• Suggestions for alternative formats are welcome; please discuss any ideas with the conference organising committee, in the first instance.

The deadline for submission of proposals is Friday 28 May 2021. Please send proposals by email attachment to: bchs@leeds.ac.uk

The conference organising committee is: Eleanor Bland (Oxford Brookes University); David Churchill (University of Leeds); Kisby Dickinson (University of Leeds); Elliott Keech (University of York); Craig Newbery-Jones (University of Leeds); Henry Yeomans (University of Leeds).

Please direct any queries to: bchs@leeds.ac.uk

--Mitra Sharafi

Gerber on the European Background to Anglo-American Religious Liberty

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America, which is to appear in Glossae: European Journal of Legal History (2021):

Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.

--Dan Ernst

History Society Lecture: Law in a time of plague

 [We share the following announcement for an online event on 22 March 2021 at 5.30pm-7pm GMT. This zoom webinar is sponsored by the Inner Temple.]

History Society Lecture: 

Law in a time of plague--was the law a good doctor? 

• Professor Sir John Baker (Emeritus Downing Professor of the Laws of England 1998-2011 and Inner Temple Bencher)
• Professor John Wass (Professor of Endocrinology, University of Oxford and Inner Temple Bencher)

Further details and registration here.

--Mitra Sharafi

AJLH 60:4

The American Journal of Legal History 60: 4 (December 2020) is now published online:

The Anti-Republican Origins of the At-Will Doctrine    
Lea VanderVelde
 
Capturing Profit from Disaster: The Assets Company Ltd and the Afterlife of the City of Glasgow Bank    
Sean O’Reilly
 
Where Did ‘Human Dignity’ Come from? Drafting the Preamble to the Irish Constitution    
Christopher McCrudden
 
From Disputation Hall to High Office: Swedish Students’ Legal Dissertations at German and Dutch Universities in the Seventeenth and Eighteenth Centuries    
Marianne Vasara-Aaltonen
 
Book Reviews
 
The Historical Logics of Work Accident Law: Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and the Law in the Progressive Era    
 John Fabian Witt
 
Thomas J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law's First Professionals    
John Hudson
 
Michael A. Schoeppner, Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America    
Andrew Hammann
 
Emily Whewell, Law Across Imperial Borders: British Consuls and Colonial Connections on China’s Western Frontiers, 1880–1943    
Eric Schluessel
 
Leandra Ruth Zarnow, Battling Bella: The Protest Politics of Bella Abzug    
Alison Lefkovitz
 
 Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present    
Karissa Haugeberg

CFP: Gender and justice in Scotland

 [We share the following Call, via the Edinburgh Legal History Blog. Submissions are due by 19 March 2021.]

Gender and justice in Scotland: historical and legal perspectives 

‘Gender and Justice in Scotland: Historical and Legal Perspectives’ is a collaborative symposium between the University of Glasgow’s Centre for Gender History and the School of Law. The historical struggle for gender equality has transformed women’s access to justice in Scotland today. Over the last two centuries, Scottish feminists and their supporters campaigned for women’s right to vote, to own property, to seek marital separation, to obtain custody of their children and to have bodily autonomy. Understanding women’s access to justice in the Scottish past can help legal practitioners and the courts make better-informed decisions when encountering similar problems today. The ways in which we make sense of women’s social agency needs to acknowledge the intersectional nature of ongoing discrimination throughout history. Even today, the struggle for gender equality is far from complete, and a glaring disparity between the achieved equality of women and their lived realities still remains. 

This is a call for papers which aims to explore issues affecting women’s access to justice in Scotland across time and space, and we welcome research on all Scottish courts, regions, jurisdictions, ethnicities, sexual and gendered identities, languages and religious and confessional identities. We also welcome papers that approach Scotland through a comparative or international perspective. Post-graduate students are particularly encouraged to apply. We welcome abstracts from a variety of disciplines, including (but not limited to): history, law, criminology and social science. We invite papers that address the following or related themes in a historical or legal perspective: • inheritance, succession and family law • cohabitants’ rights on separation and death • civil partnership, marriage, and divorce • civil remedies for domestic abuse and gender-based violence • reproductive health rights • parental rights and responsibilities, children and adoption. 

The symposium will be held online on 6 and 7 May 2021. Please send a 300-word abstract with a short biography to the organiser with ‘Gender and Justice’ in the subject line by 19 March 2021. 

Organiser: Dr Rebecca Mason, ESRC Postdoctoral Fellow in the School of Law Email: contact@womenmarriagelawscotland.org 

Co-organisers: Dr Maud Bracke and Dr Jackie Clarke (Centre for Gender History); Professor Jane Mair (School of Law).

--Mitra Sharafi

Crowdsourcing Spanish Legal Documents at Law Library of Congress

 [We have the following announcement.  DRE]

The Law Library of Congress is proud to announce our all-virtual festivities to celebrate the first anniversary of our crowdsourcing campaign, Herencia: Centuries of Spanish Legal Documents, starting with a Review Challenge! We still have over 5,000 documents left to review, and from March 15 to March 19, help us chip away at that number by reviewing a page from our Laws & Statutes: Crime and Law Enforcement collection. Follow us on Twitter and HistoryHub for updates on the review challenge. ...

As part of our anniversary celebration, we invite you to our Lunch & Learn Webinar: A Conversation with the Herencia Crowdsourcing Interns on March 17 at 2:00pm EDT. Geraldine Dávila González will moderate a panel discussion with our remote interns from all across the country including: Teresa Kane, Courtney Kennedy, Jake Neuberger, Aranza Obscura, Emily Hausheer, and Lourdes Johnson. Senior legal information specialist, Stephen Mayeaux, will give an overview of the campaign and what to expect in the next year.

Griffin on Historians and Originalists

Over at Balkinization, Stephen Griffin, Tulane Law School, has a posted Originalists vs. Historians: Round?   It commences:

Originalists are at it again, claiming that their project differs fundamentally from “historical inquiry.” This is the term I employ to denote the ordinary practice and methodology of historians in a just-published article in the Tulane Law Review, “Optimistic Originalism and the Reconstruction Amendments.”  But is this contention as plausible as they assume?  In my article, I advance the argument in this dispute in a way not reflected in the most recent round of controversy.

I refer to the exchange between Mary Sarah Bilder in the historians’ corner and John McGinnis and Mike Ramsey for the originalists.  Bilder, a legal historian who has made important contributions to our knowledge of the founding period, offered some pointed observations about originalism by way of memorializing the late Bernard Bailyn, surely one of the most distinguished historians of American history.  Like many historians, Bailyn was most impressed with the process of intellectual change and exchange involved in making and then implementing the Constitution, not the fixity of the constitutional text.  Clearly leaning against influential forms of semantic or public meaning originalism, Bilder is provocative: “[o]riginalism missed everything that mattered about the debate on the Constitution.”

Dan Ernst

Law, Literature and America's Wars

Just out from the Oxford University Press: Cannons and Codes: Law, Literature, and America's Wars, edited by Alison L. LaCroix, Jonathan S. Masur, and Martha C. Nussbaum:

It can be said that western literature begins with a war story, the Iliad; and that this is true too of many non-Western literary traditions, such as the Mahabharata. And yet, though a profoundly human subject, war often appears to be by definition outside the realm of structures such as law and literature. When we speak of war, we often understand it as incapable of being rendered into rules or words. Lawyers struggle to fit the horrors of the battlefield, the torture chamber, or the makeshift hospital filled with wounded and dying civilians into the framework of legible rules and shared understandings that law assumes and demands. In the West's centuries-long effort to construct a formal law of war, the imperative has been to acknowledge the inhumanity of war while resisting the conclusion that it need therefore be without law. Writers, in contrast, seek to find the human within war--an individual story, perhaps even a moment of comprehension. Law and literature might in this way be said to share imperialist tendencies where war is concerned: toward extending their dominion to contain what might be uncontainable.

Law, literature, and war are thus all profoundly connected--and it is this connection this edited volume aims to explore, assembling essays by preeminent scholars to discuss the ways in which literary works can shed light on legal thinking about war, and how a deep understanding of law can lead to interpretive insights on literary works. Some of the contributions concern the lives of soldiers; others focus on civilians living in war zones who are caught up in the conflict; still others address themselves to the home front, far from the theatre of war. By collecting such diverse perspectives, the volume aims to illuminate how literature has reflected the totalizing nature of war and the ways in which it distorts law across domain.

TOC after the Jump.  DRE

Digital Exhibit: Horace R. Hansen and the Dachau War Crimes Trial

The Riesenfeld Rare Books Research Center at the University of Minnesota Law Library has mounted a new digital exhibit, A Witness to Barbarism: Horace R. Hansen and the Dachau War Crimes Trial.  From the exhibit:

The Dachau War Crimes Trials (1945–1947) represent the most extensive prosecutions undertaken by the occupying American forces in post-World War II Germany. In two years of American military trials, 489 criminal cases and 1,672 defendants were tried at Dachau. 1,416 individuals were convicted of crimes committed under the Nazi regime, and 279 death sentences were handed down. Together with the Nuremberg Trials (IMT and NMT), Tokyo Trial (IMTFE), and others, the Dachau Trials set a new standard for the prosecution of war crimes under international law, the legacy of which continues today.

Captain Horace R. Hansen (1910–1995), a graduate of the University of Minnesota and St. Paul College of Law, served as a chief prosecutor of the War Crimes Division of the U.S. Third Army in occupied Germany. From late 1945 to 1946, Hansen and his staff gathered evidence and helped to prepare cases for trial at Dachau, including three of the main concentration camp cases: the Dachau camp trial, and the Buchenwald and Mauthausen camp trials. Hansen’s work at Dachau helped to secure the convictions of Nazi war criminals and contributed to a historic new precedent for war crimes trials.

This exhibit provides a narrative of Horace Hansen’s work at Dachau and the main Dachau concentration camp trial. It also contains a section on Hansen’s journey to Dachau as a soldier and war crimes investigator, and on the genesis of Hansen’s later book about his experience, Witness to Barbarism (2002). The menu items at left correspond to the respective sections of the exhibit. The selected documents on this site include the full transcript of the Dachau concentration camp trial, other material related to the Dachau trials, and to Hansen’s wartime service. The documents and photographs are drawn from Horace R. Hansen’s archive, preserved in the Riesenfeld Rare Books Research Center at the University of Minnesota Law Library.

--Dan Ernst

Center for the Study of Law and Society Spring '21 Speaker Schedule

The Center for the Study of Law and Society at the University of California, Berkeley, has posted the lineup for its Spring 2021 speaker series. Readers may be particularly interested in the following:

March 1. Paul Gutierrez, Assistant Professor of Political Science, University of Florida, “The Division of an Empire: The Settler Colonial and Revolutionary Entanglements of Dartmouth v. Woodward." 

April 12. Christopher Tomlins (University of California, Berkeley), In the Matter of Nat Turner: A Speculative History (Princeton University Press, 2020), with comments from Dylan Penningroth and Stephanie Jones-Rogers.

April 19. Armando Lara-Millán (University of California, Berkeley), Redistributing the Poor: The Transformation of Jails and Hospitals in the Era of Urban Austerity and Progressive Law (Oxford University Press, Forthcoming 2021).

-- Karen Tani

Special Issue: EU Legal History

The latest "Weekend Edition" of EU Law Live is a special issue, EU Legal History. Contributors include Morton Rassmussen on “Why European Law Needs a Legal History" and Bill Davies on “Biography as a Window into the European Union’s Legal History.”

Weekend Roundup

• The American Historical Association has established $500 emergency grants to "assist un/underemployed historians who have been financially affected by the COVID-19 outbreak."
  

• Princeton Ph.D. candidate Teal Acardi asked Twitter for reading recommendations on state building and infrastructure. He turned the results into a crowd-sourced #InfrastructureSyllabus. It includes lots of legal history.
  

• Over at the Legal History Miscellany: Sara M. Butler on botched executions in medieval England and Ohio today; and Gwen Seabourne on runaway nuns.
  

• Harvard Law professor Jeannie Suk Gersen's New Yorker piece on the latest comfort women controversy ignited by her colleague J. Mark Ramseyer.
  

• Duke Law’s H. Timothy Lovelace, Jr., interviewed in conjunction with his 2021 Rights and the Humanities lecture, delivered on Tuesday, February 23, Martin, the Movement, and the World of Comparative Law.
  

• Randall Kennedy, Martha Minow and Cass Sunstein have founded the American Journal of Law and Equality (Harvard Law Today).
  

• From the Washington Post's "Made by History" section: Gavin Benke (Boston University) on energy deregulation and the Texas crisis; A. K. Sandoval-Strausz (Pennsylvania State University) on why "a path to citizenship for 11 million immigrants is a no-brainer"; and more.
  

• ICYMI: Honoring Macon Bolling (Queens Daily Eagle). Remembering Georgia's "original 33" Black state legislators (WTOC).  Slavery in Southern Illinois (WSILTV) and Connecticut (MetroWestDailyNews).   Ending segregation in Oak Ridge, Tenn. (NET).  The Library of Congress Acquires 200 Sketches of the Rodney King Police Brutality Trials (Fine Books & Collections).  Raymond Pace Alexander and Sadie Tanner Alexander (Philadelphia Tribune).  

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

Sugarman on Fitzpatrick, Twining, and Brooks

David Sugarman, Professor Emeritus at the Lancaster University Law School and an Honorary Fellow of the American Society for Legal History, has posted biographical essays of three legal scholars: Becoming Peter Fitzpatrick (1941-2020); William Twining: The Man Who Radicalized the Middle Ground; and Law, Law-Consciousness and Lawyers as Constitutive of Early Modern England: Christopher W. Brooks's Singular Journey.  The first is forthcoming in a special issue of International Journal of Law in Context 17:1 (March 2021), devoted to Peter Fitzpatrick and his scholarship.  The second will appear in another special issue of the same journal, devoted to Twining’s Jurist in Context: A Memoir.  The third appeared in Law, Lawyers and Litigants in Early Modern England. Essays in Memory of Christopher W. Brooks, ed. Michael Lobban, Joanne Begiato and Adrian Green (Cambridge University Press, 2019) 32-57.

--Dan Ernst

Drinan Scholars at BC Law

Robert F. Drinan, SJ (LC)

[We have the following announcement, about a fellowship program named after an adored colleague of mine at Georgetown Law, who was earlier dean of Boston College Law (and a US Congressman), Robert F. Drinan, SJ.  DRE]

Boston College Law School - Drinan Scholars Program: Visiting Assistant Professor

Boston College Law School seeks applicants for the Drinan Scholars Program. The Program provides research opportunities, faculty mentoring, and career development for promising legal scholars and teachers. The Drinan Scholars Program combines law teaching with scholarly research and writing.  The Program is designed to support the training of future law professors who will enhance the diversity of the legal academy, and therefore seeks applicants with backgrounds underrepresented on law faculties. The Program additionally seeks to further BC Law's commitment to studying the causes of and solutions to structural racism.

The Drinan Scholars Program provides aspiring legal academics with an opportunity to develop their scholarship and teaching, and ultimately seek long-term academic positions. BC Law is known for its strong focus on law teaching, research excellence, and a collaborative atmosphere. Boston College is a major research university located near Boston, a city with a rich academic culture including 5 law schools and 35 colleges and universities.

The Drinan Scholars Program concentrates on aspects of academic life most likely to be helpful in preparing for a faculty career in legal education. The Drinan Scholar will teach law courses, with teaching assignments designed to dovetail with the scholar's research and teaching interests.  The teaching load will allow ample opportunities for research and publication of major works of scholarship. In addition, the scholar will be assigned a primary senior faculty and junior faculty mentor to provide advice and support on teaching, scholarship, and preparation for the legal academic teaching market. Drinan Scholars participate fully in the life of BC Law, including but not limited to attendance at faculty workshops, opportunities to workshop papers and present at BC Law's Junior Faculty Forum, and access to teaching support through Boston College's Center for Teaching Excellence

The Drinan Scholars Program does not have a specific subject matter focus, but we are especially interested in receiving applications from scholars who seek to conduct research and writing on issues related to race and the law. Selection criteria include the potential for excellence in legal teaching and scholarship, contributions to diversity, equity, and inclusion, and the degree to which the applicant's research proposal aligns with institutional resources and opportunities.  

Drinan Scholar appointments are for two years with support for participating in the law hiring market during the second year. Scholars will be appointed at the rank of Visiting Assistant Professor of Law. The salary for the 2021-22 Academic Year will be competitive with well-regarded law fellowship and VAP programs. In addition, Drinan Scholars will be provided with research support including research, travel funds and the opportunity to hire law student research assistants. Scholars will be expected to be in full-time residence at BC Law during the academic year.

More.

CSCHS Research Travel Grant in California Legal History

[We have the following announcement.  DRE]

The CSCHS Research Travel Grant in California Legal History.  The California Supreme Court Historical Society has established a Research Travel Grant to defray the expenses of graduate students and law students at accredited U.S. universities and law schools who are researching California legal history for the purpose of preparing an article or other paper.

This grant was funded by the generosity of California Supreme Court Justice Kathryn Mickle Werdegar (Ret.) and David M. Werdegar, M.D., in honor of Selma Moidel Smith, Editor-in-Chief of California Legal History. Additional donations are welcome to ensure the continuation of this grant program.

Forret on Williams' gang

 Jeff Forret (Lamar University) published Williams' Gang: A Notorious Slave Trader and his Cargo of Black Convicts with Cambridge University Press in 2020. From the publisher: 

William H. Williams operated a slave pen in Washington, DC, known as the Yellow House, and actively trafficked in enslaved men, women, and children for more than twenty years. His slave trading activities took an extraordinary turn in 1840 when he purchased twenty-seven enslaved convicts from the Virginia State Penitentiary in Richmond with the understanding that he could carry them outside of the United States for sale. When Williams conveyed his captives illegally into New Orleans, allegedly while en route to the foreign country of Texas, he prompted a series of courtroom dramas that would last for almost three decades. Based on court records, newspapers, governors' files, slave manifests, slave narratives, travelers' accounts, and penitentiary data, Williams' Gang examines slave criminality, the coastwise domestic slave trade, and southern jurisprudence as it supplies a compelling portrait of the economy, society, and politics of the Old South.

Praise for the book: 

 "In Williams' Gang, Jeff Forret takes a journey through some of the dark and often convoluted paths traveled by domestic slave traders and their human merchandise. Taking time along the way to introduce readers to some of the elaborate financial and legal infrastructures that governed and facilitated the domestic slave trade, Forret tells a once infamous but largely forgotten story about the Washington, DC slave trader William H. Williams and the enslaved Virginia convicts he imported illegally to Louisiana. Built on an impressive mountain of archival research and relayed with vivid prose, it is a story Williams himself surely wished would never have been one to tell at all." - Joshua D. Rothman

'"An expert autopsy of crime and punishment in the Old South with striking relevance for today. Leading historian of Southern history Jeff Forret meticulously narrates the ordeals of twenty-seven Black Virginians, whose enslavement was compounded by convictions and whose transport to Louisiana at the hands of a Washington, DC slave trader led to a dozen years each in the Louisiana State Penitentiary. Forret shows the guts of a horrific injustice that supports ongoing structural violence against African Americans." - Calvin Schermerhorn

"… meticulously researched and superbly crafted … This is a vivid and absorbing account of the exploitation of human beings whose suffering meant profit for others, all of which is part of our nation's history." - Roger Bishop

"… demonstrate(s) the riches awaiting us in narrating the hitherto untold and complex stories of slavery and emancipation in the United States." - Manisha Sinha

Further information is available here.

--Mitra Sharafi

Land on the Origination Clause

Chris Land, Northwestern University Pritzker School of Law, has posted The Origination Clause’s Missing Piece, which is forthcoming in the Tennessee Law Review 87 (2021):

The Origination Clause is nearly constitutional surplusage today. The scope of the Clause has been limited by the U.S. Supreme Court to a very narrow class of revenue legislation that emerges from the U.S. House of Representatives.

This Article, for the first time, analyzes historical evidence that the U.S. Supreme Court has defined the constitutional scope of “Bills for raising Revenue”—and the concomitant reach of the Clause—in a manner that fails to account for Revolutionary-era British revenue legislation. Four of the five bills passed by the British Parliament which contributed to the outbreak of the Revolutionary War, i.e., the Sugar Act 1764, Stamp Act 1765, American Colonies Act/Declaratory Act 1766, Revenue Act 1767 and the Tea Act 1773, were considered by the Revolutionary-era generation to be “Bills for raising Revenue.” These measures were largely the genesis of the slogan “taxation without representation.

Under U.S. Supreme Court precedent today, none of these Revolutionary-era measures would likely be subject to the Origination Clause because each bill raised revenue for a specific governmental purpose, e.g., the defense of the American colonies, the enforcement of anti-smuggling laws and other specific, directed purposes. Though Origination Clause precedent has supposedly been rooted by the Court in “the history of the origin of the power,” Origination Clause cases make it clear that only those bills that raise “revenue to support government generally,” i.e., undesignated revenue-raisers, are subject to the Origination Clause’s requirements.

This Article contends that this approach is largely unsupported by the historical record and that our modern application of the Origination Clause is missing an important piece—the Revolutionary-era generation’s view of the legislation which truly constitutes “Bills for raising Revenue.”

–Dan Ernst

Cross and Gluck on Congressional Bureaucracy

Jesse Cross, University of South Carolina School of Law, and Abbe R. Gluck, Yale Law School, has posted The Congressional Bureaucracy, which appears University of Pennsylvania Law Review 168 (2020):

Hall of 40 Columns Supporting the Capitol Dome

This Article introduces the concept of the “congressional bureaucracy,” and theorizes what it means for Congress to have an internal workforce of more than 4,000 nonpartisan, highly specialized, and long-serving experts, without which the modern Congress could not function. These experts—not elected Members or their political staffs—write the text of the laws, audit implementation, research policy, estimate bills’ economic effects, decide which committees control legislation and which amendments can be made, edit and rearrange already-enacted (!) legislation into the law as we see it in the U.S. Code, and much more. The congressional bureaucracy furthers internal and external separation of powers, revives theories of Congress as a rational actor, and supplies key insight for statutory interpretation. But Courts, lawyers and legal scholars have almost entirely ignored their existence.

This project is based on two years of confidential interviews with high-level staffers in Congress’s nine nonpartisan legislative institutions—the Office of the Law Revision Counsel; the Offices of the Legislative Counsels; the Congressional Research Service; the Government Accountability Office; the Parliamentarians; the Congressional Budget Office; the Joint Committee on Taxation; MedPAC and MACPAC—and additional interviews with partisan staff. The project furthers a new line of legislation scholarship about the value to theory and doctrine of understanding how Congress actually works. Courts cannot claim the doctrines of statutory interpretation are democratically linked to Congress, as virtually all judges do, without understanding how it writes legislation.

Our research reveals that the congressional bureaucracy serves purposes previously unimagined by legal scholarship. Classic bureaucracy literature posits that Congress loses power when it delegates. But the congressional bureaucracy was explicitly founded so that Congress could reclaim and safeguard its own powers against an executive branch that was encroaching on the legislative process. The bureaucracy also safeguards Congress’s own internal separation of powers, the salutary decentralization of law-producing responsibilities among a collection of nonpartisan actors, preventing any one aspect of the lawmaking process from coming under undue political or centralized control.

Understanding the congressional bureaucracy’s work also provocatively deconstructs the concept of a “statutory text.” The words Congress enacts are the result of a highly dialogic process that is triggered by and includes assumptions about critical inputs from the bureaucracy. Members and partisan staff focus on the substance of legislation at the macro level, not the specific words chosen at the micro level—that is the bureaucracy’s job. What we see when we open the statute books often is not even what Congress enacted or how Congress arranged it, because OLRC reorganizes and edits the laws after passage. So conceived, the concept of a “statute” is much more capacious than merely the “text” at the moment of the vote. None of this is illegitimate; Congress has set itself up this way. All of these inputs are part of the “text” as Congress intends it to be understood.

Together, these institutions paint a picture of a Congress that is not as irrational as the public considers it to be. They also have on-the-ground lessons for statutory interpretation, highlighting critical inputs that courts miss and numerous statutory cues—from code placement to consistency of language to CBO scores—some of which courts dramatically overread, others of which should be attractive even to textualists because they result from formalist, objective, collectively congressional action. The field is now engaged in emerging debates about whether doctrine can absorb this kind of detail about legislative process; understanding the congressional bureaucracy is a critical new piece of this account.

--Dan Ernst

CFP: Slavery Past, Present and Future

[We have the following Call for Papers.  DRE.]

Slavery: Past, Present & Future: 5th Global Meeting, July 7-9, 2021.  To be held online on the Zoom platform hosted by Indiana University Robert H. McKinney School of Law.
  
Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, kinship, and exploitation of indebtedness have been an intrinsic part of human societies.
Slavery and a variety of other forms of exploitation existed in ancient societies across the world, and in many other states and territories.  The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas.  

Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today.  This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.

But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like 'consumers' of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights?  

The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions.  

In keeping with previous meetings, the format of the Slavery Past, Present and Future Conference this year will be plenary. We intend to hold the meetings for part of the day only [EST] to avoid Zoom fatigue and expect those who register to attend all the sessions in order to facilitate a genuine cross-fertilization of ideas across identities, disciplines, and subject areas. 

GLHC: Ablavsky's "Federal Ground"

[I have the following announcement from my Georgetown Law colleagues K-Sue Park and Kevin Arlyck.   DRE]

The Georgetown Legal History Colloquium reconvenes next week with the first of a projected two online book talks.  On March 1, from 12:30-1:50pm EST.  Greg Ablavsky, Stanford Law, will discuss his new book Federal Ground: Governing Property and Violence in the First U.S. Territories (Oxford University Press).  Professors Paul Frymer, Princeton University, and Bethel Saler, Haverford College, will respond.  RSVP here.

Steedman on history and the law

 Carolyn Steedman (University of Warwick) published History and the Law: A Love Story with Cambridge University Press in 2020.

From the publisher: 

Focusing on everyday legal experiences, from that of magistrates, novelists and political philosophers, to maidservants, pauper men and women, down-at-heel attorneys and middling-sort wives in their coverture, History and the Law reveals how people thought about, used, manipulated and resisted the law between the eighteenth and the twentieth centuries. Supported by clear, engaging examples taken from the historical record, and from the writing of historians including Laurence Sterne, William Godwin, and E. P. Thompson, who each had troubled love affairs with the law, Carolyn Steedman puts the emphasis on English poor laws, copyright law, and laws regarding women. Evocatively written and highly original, History and the Law accounts for historians' strange ambivalent love affair with the law and with legal records that appear to promise access to so many lives in the past.

Praise for the book:

 "Steedman writes the sort of book we have come to expect - stunningly original, steeped in local archives and literature, distinctive in its methods and voice. History and the Law concerns the everyday legal encounters of ordinary people, and the attraction of the law for historians keen to understand hearts and minds in the past." - James Epstein

"The always engaging and reflective Carolyn Steedman here chronicles her own and others' struggles to understand and make use of eighteenth-century law - others from that time and others from our time. Taken together, these essays sketch an important agenda for historical enquiry, as well as providing insights into the historian's craft." - Joanna Innes

"Steedman cleverly recounts the history of everyday experiences of the law in modern Britain. Beautifully written and drawing on a wealth of sources from the eighteenth and nineteenth centuries, it will appeal to historians as well as literary and legal scholars alike." - Julia Moses

"A distinctively approachable, eclectic and stimulating series of reflections on law and history's interactions, both in theory and practice, over the past four centuries, from a leading exponent of modern British cultural and social history." - Wilfrid Prest

Further information is available here.

--Mitra Sharafi

Vlahoplus on Early Delegations of Federal Powers

John Vlahoplus has posted Early Delegations of Federal Powers, which is forthcoming in the George Washington Law Review Arguendo:

Conservatives have long tried to eviscerate federal administrative law by divining an implicit constitutional doctrine forbidding Congress to delegate its legislative powers. Contemporary originalists continue the effort, arguing that the original meaning of the Constitution includes this doctrine despite its absence from the document’s text. In response, critics have begun to show that early American constitutional history and theory support contemporary administrative law either as a valid delegation of legislative power to the executive branch or as the executive branch executing a statutory directive (or both).

This Article expands on that response and critiques standard originalist arguments for a nondelegation doctrine. It demonstrates that early congressional statutes delegated federal powers to a broad group of actors including private experts acting alone, private experts acting with judicial or executive oversight, and non-federal authorities in addition to federal executive officials. Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions. The delegations included areas demanding expertise or flexible decision-making and required the delegate to balance risks against economic costs. They addressed some of the most critical subjects for the nation’s early government: race, shipping, and the public fisc.

A 1790 statute, for example, protected the health and safety of sailors on foreign voyages. It specified minimum requirements for the types, amounts, and storage of food and water for every sailor. It also provided that each American ship of a certain size and crew "shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled."

Food, water, and medicines have costs, of course. Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea. It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage. But Congress did not. Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration.

The use of experts and administrative law are well within the Constitution’s constraints on the federal government. Conservatives who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments. But they cannot rely on history to claim that the “original meaning” of the Constitution includes a nondelegation doctrine.

--Dan Ernst.  H/t: Legal Theory Blog

Hibbitts on the Origins of Distance Legal Education

If it finally gets us a history of correspondence legal education, Zoom Law School won’t have been all bad.  Former LHB Guest Blogger Bernard J. Hibbitts, University of Pittsburgh School of Law, has posted an installment, Pushing the Envelope: How a Handful of Innovative Law Professors Delivered Distance Education in the Age of Langdell, of a book-length project, Missionaries and Mail Men: Correspondence Law Schools and the Struggle for the Soul of American Legal Education.

Credit: Internet Archive

This is the introduction and first section of a much longer paper on university law professors’ brief and ultimately doomed dalliance with correspondence legal education in the 1870s and 1880s before multiple for-profit concerns enthusiastically adopted the method in the 1890s. In this segment I outline the trajectory of the paper and then discuss the legal, social and educational circumstances that led a few maverick law professors at Yale and later Columbia to entertain the radical notion of teaching non-resident students by mail at roughly the same time that Christopher Columbus Langdell was developing the case method at Harvard. I give extended consideration to the disruption of the antebellum law school structure by the Civil War, the passion for innovation of all sorts that swept the United States in the late 1860s and 1870s, critical changes in the American postal and transportation infrastructure that effectively wired the country for correspondence instruction, and early experiments in extension and correspondence education in England and the United States after 1867 that appeared to demonstrate proof of concept in advance of the Yale and Columbia experiments.

–Dan Ernst.  Update: More Hibbitts on Making Lawyers by Mail.

A Discussion of "The Neo-Liberal Republic"

On Monday, February 22, at 1:15 PM EST, Cornell University is sponsoring a discussion of Antoine Vauchez and Pierre France’s The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France, which appears in Cornell University Press’s Corpus Juris book series, edited by Elizabeth S. Anker, Cornell University.  The discussants are Samuel Moyn, Yale University/Yale Law School, Mitchel Lasser, Cornell Law School, and Katharina Pistor, Columbia Law School.  Antoine Vauchez, Universite Paris 1–Sorbonne, will respond.  Professor Anker will moderate.  Register here.

--Dan Ernst.  H/t:  Thomas Perroud

Weekend Roundup

• Celebrating Legal Heroes (during Black History Month) at UVA Law. 

• At the Riesenfeld Rare Books Center, University of Minnesota Law Library: this virtual exhibit on Law and the Struggle for Racial Justice.
  

• On February 17, Chris J. Brummer, Georgetown Law, delivered the keynote address in the Securities and Exchange Commission’s observance of Black History Month.  He drew upon his Brookings Working Paper, "What do the Data Reveal about (the Absence of Black) Financial Regulators?"  The text of the address is here.
  

• University at Buffalo’s notice of that symposium issue for John Henry Schlegel (UBNow).  Click for the pic! 
  

• Mark Graber on Their Fourteenth Amendment, Section 3 and Ours, from his book in progress, The Forgotten Fourteenth Amendment (Just Security).
  

• From the Washington Post's "Made by History" section: Teal Acardi (Ph.D. candidate, Princeton University), "Texas’s power grid failing shows why Biden needs to go big on infrastructure"; Laura Briggs (University of Massachusetts, Amherst) on Biden's immigration bill and repairing the harms of family separation.
  

• Daniel Sharfstein, Vanderbilt University, will speak in the Dean’s Lecture Series on Racial Justice and Discrimination on February 25, 12:00pm - 1:00pm CST (1:00pm - 2:00pm EST).
  

• On February 26, “The History of Central Banking in Hong Kong, Mainland China and Singapore,” in the Greater China Legal History Seminar Series at CUHK LAW.  More.
  

• On March 5, 2021, from 13:15 - 15:00, Prof. Dr. Thomas Duve, Max Planck Institute for Legal History and Legal Theory, will conduct, in German, the seminar Methods of Legal History  It will focus on “methodological issues that are especially important for the work in the department ‘Historical Normativity.’”  Registration for the event until February 25: sekduve@rg.mpg.de
  

• 
  Aimée Craft, University of Ottawa, receives CBA President’s Award for her work on Canadian indigenous law, including Breathing Life Into the Stone Fort Treaty (UBC Press, 2013) (CBA National).

• The deadline for submissions for the 2022 annual meeting of the American Historical Association has been extended to Monday, March 8.  More. 
  

• "The State Historical Society of Iowa has officially opened the 2021-2022 cycle of applications for our Research Grants for Authors."  More.
  

• Jay Sexton, University of Missouri, on political violence in American history, in conjunction with the Missouri Humanities Council panel, “A Nation Divided: How One Decade Can Change Everything" (Columbia Missourian).
  

• ICYMI: Laura Edwards on Section 3 of the 14th Amendment (IBT).  James Goodman wants us to stop calling slavery America's "original sin" (CNN). The KKK Act and the Sack of the Capitol (WaPo). The National Security Archive et. al. v. Donald J. Trump saves White House records (NSA). Larry Wilmore on “Amend: The Fight for America” (K5).  More on "Amend," in Bustle.  Can't have a Green New Deal without a CCC (Civilian Climate Corps) (Next City).  More on section 3 of the Fourteenth Amendment (with Edwards, Hemel, and Magliocca) (abc6).
  

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

Kathryn T. Preyer Scholars Program

 [We have the following announcement.  DRE.]

The [American Society for Legal History] welcomes applications for the Kathryn T. Preyer Scholars program. The Kathryn T. Preyer Scholars program annually recognizes two early career legal historians presenting what would normally be their first papers at the American Society for Legal History's conference. In addition to presenting their work at a specially-designated Preyer Panel, recipients receive a small honorarium to reimburse, in some measure or entirely, their costs of attending the conference.

The competition is organized by the Society’s Kathryn T. Preyer Memorial Committee.  The deadline for submission is April 1, 2021.  Complete guidelines and instructions on how to apply are available here.

Conti-Brown and Feinstein on Financial Legislation, 1913-2020

Peter Conti-Brown and Brian D. Feinstein, University of Pennsylvania, on The Contingent Origins of Financial Legislation:

Courts and scholars often view major financial legislation warily. One popular theory holds that Congress only legislates in this area when pushed by opportunistic activists in response to crises that neither activists nor legislators understand. Another account contends that financial legislation is the well-designed product of deeply entrenched schemes by special interest groups that control the process with limited input from others. Further, the Supreme Court’s application of antinovelty doctrine—which counsels that governmental structures without historical precedent are constitutionally suspect—sends a strong signal that creative solutions to these problems will be viewed with judicial skepticism.

This Article challenges the prevailing scholarly theories of financial legislation and reveals as irredeemably flawed the Court’s related assumptions about legislative processes. This reassessment is based on historical analysis of seven watershed events in American legal and financial history, grounding important moments more firmly in their political contexts. From the Federal Reserve Act of 1913 to the CARES Act of 2020, we uncover neither a pattern of responding to crises nor a logic of grand design at the frontier of congressional authority. Instead, the sweep of history reveals reactions to unpredictable events, policy entrepreneurs with proposals that change substantially during the course of the legislative process, and temporary legislative coalitions that respond to perceived problems in largely ad hoc ways. The result is a flourishing of congressional experimentation at every turn. Temporary coalitions and historical contingencies are the primary themes in financial lawmaking. Novel legislative experiments are not the exception, but the rule.

That insight exposes the impracticality and incoherence of the ascendant antinovelty doctrine. Judicial insensitivity to the ubiquity of unpredictability and experimentation in legislative design risks curtailing Congress’s legitimate and constitutional powers to shape the financial system in a democratically accountable way.

–Dan Ernst

Tan, Hoque and friends on constitutional foundings in South Asia

Kevin Y. L. Tan (National University of Singapore/Nanyang Technological University) and Ridwanul Hoque (University of Dhaka/Charles Darwin University, Australia) have co-edited Constitutional Foundings in South Asia, just out with Hart. From the publisher: 

This volume addresses the idea of origins, how things are formed, and how they relate to their present and future in terms of 'constitution-making' which is a continuous process in South Asian states. It examines the drafting, nature, core values and roles of the first modern constitutions during the founding of the eight modern nation-states in South Asia.

The book looks at the constitutions of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. It provides an explanatory description of the process and substantive inputs in the making of the first constitutions of these nations; it sets out to analyse the internal and external (including intra-regional) forces surrounding the making of these constitutions; and it sets out theoretical constructions of models to conceptualise the nature and role of the first constitutions (including constituent documents) in the founding of the modern nation-states and their subsequent impact on state-building in the region.

Table of Contents after the break:

Balkin on Race and Constitutional Time

Jack M. Balkin, Yale Law School, has posted Race and The Cycles of Constitutional Time, which is forthcoming in the Missouri Law Review:

My 2020 book, The Cycles of Constitutional Time, argues that we can understand American constitutional development in terms of three different kinds of cycles. The first is the rise and fall of political regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.

This essay shows how each of these cycles has deep connections to successive political struggles over race and racial equality in the United States.

Each regime’s winning coalition is shaped by the politics of slavery (in the antebellum period) or race (after the Thirteenth Amendment). In several cases, the dominant coalition eventually breaks down because of disputes about slavery or race. The cycle of polarization is also highly correlated with attempts by politicians to make race, and more generally, identity, the central questions that divide the two major political parties. Finally, polarization over race and identity-- along with increasing income inequality--has been an important factor in each period of constitutional rot in the country's history.

I do not claim that race is either the sole or the dominant explanation for the cycles of constitutional time in the United States. Nevertheless, race is a powerful factor, and the politics of race are an important driver of the cycles of regimes, polarization, and rot described in the book. My purpose in this Article is to highlight the role that racial politics plays in the transformations described in The Cycles of Constitutional Time, and to show how questions of race are important at each stage of the story.

--Dan Ernst

Morse on the Insanity Defense

Stephen Morse, University of Pennsylvania Law School, has posted Before and after Hinckley: Legal Insanity in the United States, which is forthcoming in The Insanity Defence: International and Comparative Perspectives (2022), edited by Ronnie Mackay and  Warren Brookbanks:

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that have occurred in the insanity defense since the wave of legal changes following the Hinckley decision.

--Dan Ernst

Dhir Workshop on "Black Star Line, Inc.: Race in the Historical Life of the Corporation"

The University of Connecticut Business & Human Rights Workshop is hosting a virtual workshop tomorrow (Thursday, February 18) with Aaron Dhir (Osgoode Hall Law School/Yale Law School). He'll be discussing "Black Star Line, Inc.: Race in the Historical Life of the Corporation":

From approximately 1916 to 1922, Marcus Garvey established himself as one of the most influential — and controversial — leaders in Black America. This seminar will examine Garvey’s ill-fated effort to use the Black Star Line, a Delaware-incorporated shipping firm, as an organizing vehicle for Black economic, social, and political independence. It will explore a complex set of socio-legal questions, including: How is race present in the historical life of the American business corporation? Who is traditionally thought of as an insider and an outsider in American capital markets? How have racially-inflected power asymmetries appeared in the fabric of the market? And how has the politically-motivated use of business regulation thwarted the entrepreneurial efforts and political goals of racial minority groups?

Registration info is available here.

-- Karen Tani

A Conference on the Ius Commune in Early Modern Europe

[ We have the following announcement.  DRE]