Lowe on St. George Tucker on Proroguing Congress

Jessica Lowe, University of Virginia School of Law, has posted St. George Tucker on Article II, Section 3: A Brief Synopsis:

St. George Tucker (CWF)

St. George Tucker is commonly regarded as the most important commentator on American law in the first half of the nineteenth century, and the first major post-ratification commentator on the U.S. Constitution. Tucker's edition of Blackstone's Commentaries is widely cited, but his extremely valuable law lectures, which date to the early 1790s, remain in manuscript form and are less accessible. In these lectures, Tucker examines the new Constitution and how he and others expect it to work. In the first of ten notebooks of law lectures, Tucker includes thoughts on Article II, Section 3, which has become the subject of much current national and scholarly discussion; Tucker outlines what he sees as the meaning of the clause and its applications. I became aware of this material while researching Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia (New York: Cambridge, 2019). As one of the only scholars with deep familiarity with both Tucker and his archival materials, in this short document I offer an introduction to this critical source so that it might be of use to other scholars and lawyers alike.

--Dan Ernst

ASLH Elects 3 New Honorary Fellows: James R. Phillips, Martha S. Jones, Peter Solomon

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the election of several Honorary Fellows. As the ASLH website explains,

Election as an Honorary Fellow of the American Society for Legal History is the highest honor the Society can confer. It recognizes distinguished historians whose scholarship has shaped the broad discipline of legal history and influenced the work of others. Honorary Fellows are the scholars we admire, whom we aspire to emulate, and on whose shoulders we stand.

The first fellow announced was James R. “Jim” Phillips, Professor on the Faculty of Law of the University of Toronto and Editor-in-Chief of the Osgoode Society for Canadian Legal History. The citation:

Professor Phillips has shaped the field of Canadian legal history through his own scholarship and through the dozens of scholars whose books and monographs he has shepherded to publication. Across four co-authored books, eight co-edited collections of essays, and over sixty book chapters and journal articles, Professor Phillips has deepened our understanding of a wide range of topics–criminal law, private law and the economy, judicial reform, the development of judicial independence, state relations with indigenous peoples, marriage and gender, trusts, the legal profession, prisons, and more. Professor Phillips’s earliest published work–several articles on eighteenth-century India and the East India Company–grew from his doctoral field in British imperial history. Law school, which he undertook while teaching, turned his attention to the legal history of Nova Scotia. In short order, his focus expanded to include the legal history of Canada as a whole, where, with one notable exception, his focus has remained. As field-defining as Professor Phillips’s scholarship has been, he has also built the field by encouraging and supporting the work of others. As Editor-in-Chief of the Osgoode Society for Canadian Legal History since 2006, he has overseen the publication of over sixty books, monographs, and essay collections.

Read on here.

The second Fellow announced was Martha S. Jones, Society of Black Alumni Presidential Professor of History at the Johns Hopkins University and Professor at the SNF Agora Institute. The citation:

An intellectually demanding scholar and teacher of the highest caliber, Professor Jones has delivered a forceful historical vision in sweeping revisionist accounts of race and law in the American past. Working in many communities and genres, she models an astonishing synthesis of clear-eyed purpose and uncompromised engagement. She has been a mentor for many and an inspiration for still more. Her energies and productivity are legendary, not only in scholarly research and fierce writing, but in teaching, editing, and curating. Professor Jones has innovated in public history through performance, creative nonfiction, exhibitions. She teaches in the classroom and in the world. She is, in short, a powerhouse.

There is no better example of Jones’s unabating commitment to teaching students, colleagues, and communities alike than her “Hard Histories” project at Johns Hopkins. Beginning with a research project and Special Report of Preliminary Findings authored by Jones in December 2020 on Johns Hopkins and slavery, Hard Histories has convened members of the Hopkins community to study the school’s past and its significance for the school’s present and future. “Through the lessons of hard histories,” the project promises, “we will chart a way forward.” Serving as the project’s Director, Jones has convened and presided over workshops, public conversations, art installations, and more, all designed to find new ways to unearth, confront, and work through."

Read on here.

The third Fellow announced was Peter Solomon, Professor Emeritus of Political Science, Criminology and Law at the University of Toronto. The citation:

Professor Solomon is recognized in Western scholarship as the foremost authority on Russian law, in both Soviet and post-Soviet variants. He has been studying and publishing in this field for almost fifty years, and has encouraged, nurtured, and inspired several generations of scholars interested in the not obvious and nonetheless vitally important question of how Russia’s legal system works. Solomon’s books and articles repeatedly challenged conventional assumptions about Russian law; these studies transformed interpretations, approaches and sources, and became classic references for scholars working on Soviet legal history. Professor Solomon has reached beyond the Russian setting in his comparative studies on authoritarian law. He was deeply engaged in Russian reforms begun in the 1990s and has assisted in international legal projects in post-Soviet states. Responding to Russia’s imperial aggression in the 21st century, Peter Solomon has been a generous advisor and host to legal specialists and scholars in or displaced from post-Soviet countries. Outstanding and innovative scholar, kind and inspiring teacher, engaged specialist on law in world history and politics, Peter Solomon is an ideal candidate to be named an honorary fellow of our society.

He has been an active scholar of Russia’s ongoing judicial reforms and has published numerous articles on post-Soviet procedure, the criminal code, the organs of prosecution and investigation, policing, the training and behavior of judges, rights, constitutional changes, and the work of the law in an authoritarian regime. In post-Soviet countries, Solomon’s work is of vital interest to both scholars and judicial reformers.

Read on here.

Congratulations to Professor Phillips, Professor Jones, and Professor Solomon!

-- Karen Tani

ASLH Mary L. Dudziak Digital Legal History Prize to "The Proceedings of the Old Bailey, Version 9.0"

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to a prize named for the LHB's founder. The Mary L. Dudziak Digital Legal History Prize "is awarded annually to an outstanding digital legal history project."

This year's award went to The Proceedings of the Old Bailey, Version 9.0. The citation:

The Committee unanimously selected The Proceedings of the Old Bailey, Version 9.0, (https://www.oldbaileyonline.org/). Project Directors Tim Hitchcock, Professor Emeritus of Digital History, University of Sussex, and Robert Shoemaker, Professor Emeritus of Eighteenth-Century British History, University of Sheffield, submitted this nomination on behalf of the project team, which also included Jamie McLaughlin (software engineer), Sharon Howard (data manager), and Nick Phipps (web designer). First launched in 2003, the site hosts hand-corrected transcript accounts of around 200,000 criminal trials conducted at London’s Old Bailey from 1674 to 1913. While the underlying records, known as the Proceedings of the Old Bailey, had been consulted sporadically by social historians in the twentieth century, the digitization and search apparatus provided by the Old Bailey Online has become a definitive landmark in English legal history.

The Committee is awarding the Dudziak Prize to the newest iteration of this project, Version 9.0 This major upgrade, which was launched in 2023, is significant for three reasons. First, it makes the site more accessible and sustainable. Second, the site now allows for more user interaction and manipulation of data through Elasticsearch and in response to feedback from scholars making use of their dataset. These enhanced searching features include the presentation of results in a macroscope format as well as more categories to allow for more advanced statistical modeling. Third, the curators have added new background pages that address the historiographical developments since the site was originally created twenty years ago.

Congratulations to the entire team behind this important project!

-- Karen Tani

ASLH/Business History Conference Anne Fleming Article Prize to Gerardo Con Díaz

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Anne Fleming Article Prize -- a prize that is particularly meaningful for us here at the blog. About the prize: 

The Anne Fleming Article Prize is a joint prize of the the ASLH and the Business History Conference (BHC). It is awarded every other year to the author or authors of the best article published in the previous two years in either Law and History Review or Enterprise and Society on the relation of law and business/economy in any region or historical period.

For a remembrance of our late colleague Anne Fleming, follow the link.

This year's award went to Gerardo Con Díaz (University of California, Davis) for “Patent Law and the Materiality of Inventions in the California Oil Industry: The Story of Halliburton v. Walker, 1935–1946,” Economy & Society 24.1 (2023): 174-96. The citation: 

Professor Diaz’s paper starts in 1941, when an independent engineer and inventor named Cranford Perry Walker decided to Mile a suit against Halliburton – not then the company it was to become – for patent infringement with regard to an instrument that Walker had devised and patented, christened the “Depthograph.” The Depthograph was designed to measure pressure and obstructions inside oil pipes and wells, providing vital knowledge to the booming oil industry. Walker was determined to defend his place in the market from the much larger competitor. Eventually the case went all the way to the Supreme court, where Waker was decisively defeated. From these seemingly obscure beginnings, Professor Diaz expertly unfolds a story with far-reaching implications for how intellectual property is understood and adjudicated in the US down to this day. We were unanimous in our decision. Deeply researched, beautifully crafted, and crisply written, this is an exemplary piece of scholarship in the art of bridging disciplinary divides between business and legal history.

An Honorable Mention went to Nora Slonimsky (Iona University) for “‘To Save the Benefit of the Act of Parliamt’: Mapping an Early American Copyright,” Law and History Review 40.4 (2022): 625-54.

Congratulations to Professor Con Díaz and Professor Slonimsky -- and may Anne's memory continue to be a blessing.

-- Karen Tani

Sreenivas on Legalizing Abortion in India

Mytheli Sreenivas, Ohio State University, has published Population, Eugenics and Reproductive Rights: Legalising Abortion in India, 1966–71 open access in South Asia: Journal of South Asian Studies:

This article analyses the 1971 passage of the Medical Termination of Pregnancy (MTP) Act, which created a framework for legal abortion in India. Examining the policy and legislative discourses that led to abortion reform, it demonstrates that the history of the MTP Act is not a simple trajectory of advancing the reproductive rights of pregnant persons. Rather, a connection to regimes of population control marked the MTP Act in enduring ways, notably by linking abortion to family planning, and by justifying the procedure as a eugenic response to disability. This history suggests why a rights-based approach to abortion has been so elusive, with enduring impact on access to abortion care.

--Dan Ernst

JACH Fall 2024

The Fall 2024 issue of the Journal of American Constitutional History is now online.  

A Regime of Statutes: Building the Modern President in Gilded Age America (1873-1921)
Andrea Scoseria Katz

At a time when the Supreme Court is turning its sights on the administrative state and enhancing the profile and powers of the president, it is worth recalling that behind our national complex of agencies lies a one-hundred-and-thirty-year regime of statutes, a finely wrought constitutional settlement designed not only to release power, but also to contain it. We upset this balance at our peril.

Sins and Omissions: Slavery and the Bill of Rights
Richard Primus

Why did the Constitution originally contain no bill of rights? One important reason was that the delegates believed that an attempt to compose one might wreck the entire enterprise over the issue of slavery.

Book Review

Conservative Constitutionalism Reconsidered
Dennis J. Wieboldt III

Leading scholars have uniformly overlooked one of the most significant philosophical influences on conservative legal thought in the United States: natural law. With the publication of his Conservative Thought and American Constitutionalism Since the New Deal, Jonathan O’Neill has made a welcome entry into this historiographical lacuna.

ASLH Jane Burbank Global Legal History Prize to Balakrishnan

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Jane Burbank Global Legal History Prize. About the prize: 

The Jane Burbank Article Prize in global legal history will be awarded annually to the best article in regional, global, imperial, comparative, or transnational legal history published in the previous calendar year. Submissions may address any topic or period, and may focus on case studies in which the analysis relates to broader processes or comparisons. 

This year's award went to Sarah Balakrishnan (Duke University) for “Prison of the Womb: Gender, Incarceration, and Capitalism on the Gold Coast of West Africa, c. 1500–1957,” Comparative Studies in Society and History 65:2 (2023): 296-320. The citation:

This stunningly original article challenges several dominant tendencies in the global history of prisons, particularly a persistent focus on male incarceration and an emphasis on penal practices of the colonial state. Through careful analysis of a wide range of sources, including testimony of female prisoners, Balakrishnan tells a radically new story. It centers on the incarceration of women in so-called native prisons in nineteenth-century colonial Gold Coast (southern Ghana). The phrase “prison of the womb” describes a startling pattern: captive women were threatened with impregnation in efforts to urge dept repayment and tort settlement by kin groups. Palm oil merchants targeted women and utilized the punishment to enforce collection of payments on loans and amass capital. The committee was deeply impressed by the originality of the article, its deft combination and close interpretation of varied sources, and its broader significance for the regional and global history of carceral politics and practices.

The prize committee awarded an honorable mention to Max Mishler (University of Toronto) for “‘Improper and Almost Rebellious Conduct’ Enslaved People’s Legal Politics and Abolition in the British Empire,” American Historical Review, 128:2 (2023): 648–684.

Congratulations to Professor Balakrishnan and Professor Mishler!

-- Karen Tani

CFP: Law and Humanities Workshop for Junior Scholars

[We are moving up this CFP for 2025 Law and Humanities Workshop for Junior Scholars because the deadline of December 9 is approaching.  DRE.]

Georgetown University Law Center, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture
invite submissions for the 24th meeting of the Law and Humanities Workshop for Junior Scholars, to be held at Stanford University on June 9-10, 2025.

The workshop is open to untenured professors, advanced graduate students, post-doctoral scholars, and independent scholars working in law and the humanities. In addition to drawing from numerous humanistic fields, including Black and Indigenous studies, history, literature, political theory, critical race theory, feminist theory, and philosophy, we welcome critical, qualitative work in the social sciences, including anthropology and sociology. While the scope of the Workshop is broad, we cannot consider proposals that are focused solely on quantitative social science research or that are limited to doctrinal legal research. We are especially interested in submissions from members of traditionally underrepresented groups and submissions touching on themes of anti-racism and anti-subordination. We welcome submissions from those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee, between six and eight papers will be chosen for presentation at the Workshop, where two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants that may include themes connecting all of the projects, as well as discussion of the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship.

The selected papers will appear in a special issue of the Legal Scholarship Network at SSRN; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.) However, we will only accept Workshop participants whose papers are true works in progress; articles or chapters that are already in page proofs or are otherwise unable to be revised by the time of the Workshop are ineligible.

The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1250.

Submission instructions.  Applications should include:

• a 1,500-2,000 word summary of the paper (including footnotes or endnotes);
• a 1-2 page bibliography;
• in Microsoft Word (not PDF); and
• if your paper is a chapter in a book or dissertation, an optional 1-page chapter outline of the larger project.

Applications are due on December 9, 2024.

If your application advances to the final stage of consideration, you will be asked to submit the full paper in early January, 2025. Please do not apply if you will not have a full paper by early January. Your application should be a summary of existing, ongoing work rather than a proposal for new or planned work.

Papers must be works-in-progress that do not exceed 10,000 words in length (including footnotes/endnotes). A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.

We ask that those submitting applications be careful to omit or redact any information in the paper summary or the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

Applications (in Microsoft Word—no pdf files, please) will be accepted until December 9, 2024, and should be sent by e-mail to: Lawandhumanitiesworkshop@gmail.com. Please be sure to include your name, institutional affiliation (if any), and phone and email contact information in your covering email, not in the paper itself.

For more information, please send an email inquiry to Lawandhumanitiesworkshop@gmail.com

Program Committee, 2025 Law and Humanities Workshop for Junior Scholars
Sarah Barringer Gordon, University of Pennsylvania, Law & History (emerita), Chair
Hilary Schor, University of Southern California, English, Comp. Lit., & Law
Riaz Tejani, University of Redlands, School of Business & Society
Nomi Stolzenberg, University of Southern California, Law
David Eng, University of Pennsylvania, English & Asian American Studies
Clyde Spillenger, University of California Los Angeles, Law

The Law and Humanities Workshop for Junior Scholars is committed to anti-racism both inside
and outside the academy.

CFP: Oaths and Oath-Taking in Historical Perspective

 [We have the following CFP.  DRE.]

Oaths and Oath-Taking in Historical Perspective: Britain, Ireland, and the British Empire, 1700 to the Present, 7 March 2025, Northumbria University in Newcastle.

Organisers: Henry Miller and James McConnel, Northumbria University

As the 2023 coronation of King Charles III highlighted, oaths remain a feature of modern British public life. Indeed, though largely taken for granted, oaths and declarations continue to play a much wider role within many state agencies (e.g., cabinet government,  parliaments, the judiciary, the magistracy, the armed forces, and the police force). Oaths also feature in other parts of life in the UK: professions including doctors, senior lawyers, and CoE ministers are still required to take oaths. Oaths are also a requirement of some civil society groups (e.g., the Scouts) and are required for membership of some mass-membership associations (e.g., Freemasonry and Orangeism). And since 2004, oaths have been performed at UK citizenship ceremonies up and down the country. Crucially,  all these oaths are not just subscribed to in writing, but also performed in person, often in a public, ceremonial context.

In recent decades, early modern historians have advanced our understandings of oaths and oath-taking. As a result, we now have a much better understanding of the role of oaths in changing conceptions of the political community, evolving crown-subject/state-citizen  relations, and in relation to generating trust during the upheavals of the seventeenth century and their aftermath. However, understanding the evolution and role of oaths over the longue durée (especially beyond the early eighteenth century) requires more attention, and without assuming they inevitably declined after their early modern heyday. While in the British context, the practice of national oath-taking led by the state  declined after the early eighteenth century, oaths remained in common use for a wide variety of purposes. For example, oaths were ubiquitous in civil society, taken on a peer-to-peer basis on admission to friendly societies, trade unions, and various forms of voluntary association. Similarly, although the use of oaths as religious tests to disbar non-Anglicans from public office was largely dismantled in the nineteenth century, this does not explain the varied and continued use of written and oral oaths right  up to the present day. Rather than charting a decline from an early modern peak and seeing oaths as an archaic practice that retains a residual presence today, we instead want to explore the different roles that oaths perform and have performed and why this  has mattered in different temporal, geographic, social, and political contexts.  

This one-day interdisciplinary conference to be held on Friday 7 March 2025 at Northumbria University in Newcastle seeks to bring together early modern and modern historians, as well as scholars from across the humanities and social sciences, to consider the historical and contemporary roles of oaths and oath-taking in Britain and Ireland, and beyond. The keynote lecture will be delivered by Prof. Ted Vallance (Roehampton).  

Possible topics could include, but are not confined to:

Language and rituals of oaths
Subversive oaths
Oaths and secrecy  
Religious oaths and tests
Loyalty, the constitution, and the state
Assertory and promissory oaths
Perjury and oaths as legal instruments
Oaths and modernity
Oaths, business, and capitalism
Oaths, performance, practice, and behaviour
Oaths as speech acts
Oaths, vows, swearing, and promises
Oaths and dispute resolution
Oath and material culture
Literacy and oath taking
Oaths and the history of emotions
Resisting oaths
Conscience and notions of honour
Oaths and marriage
Oaths as abjurations
Oaths and professionalism
Mundane / profane oaths
Comparative perspectives on oaths and oath-taking
 
We welcome proposals of c. 250 words (for 15-minute in-person presentations) concerning these or other topics, to be submitted, along with a short CV, by the end of Friday, 20 December 2024. The submissions should be sent  to henry.miller@northumbria.ac.uk.  Proposers will be informed of the outcome in early January 2025.  

We have some limited funding available to support travel and, if appropriate, accommodation, expenses costs of speakers: this will be reserved for those who are early career researchers, independent scholars, or in fixed term posts. If you wish to be considered  for this financial support, please indicate your likely costs of attending the workshop; and we would also ask that you first draw on any internal sources to which you have access.

Zoom Symposium: British Crosswalks and American Airlines

[We have the following announcement.  DRE]

Law, Culture, and the Humanities is sponsoring a symposium via Zoom, Wheels and Wings: Law, Regulation, and Mass Mobility in the 20th Century, on November 20 @ 12:00 pm – 1:30 pm.  Eva Vaillancourt (History, UC Berkeley) and Joanna Grisinger (Law, Northwestern University) bring their recent research projects into conversation.  Register here.

Eva Vaillancourt, Dept. of History, UC Berkeley.  "The Birth of the British Crosswalk: Mystical Lines, Mechanical Obedience, and the Puzzle of Law-as-Infrastructure”

When the first pedestrian crosswalks appeared in Britain in 1934, most people found them baffling, if not a little absurd: how do painted lines on the pavement protect you from oncoming cars? They don’t, one comedian remarked: “But if a car kills you while you are standing in it, the police won’t blame you.” This paper follows the crosswalk’s early career in British tort law, where the meaning of this new technology was hashed out over a series of cases in the late 1930s and 40s. Debate turned on questions of the body in time and space (e.g. How close to the crosswalk does a car have to be before the pedestrian’s decision to assert her right-of-way becomes “unreasonable?”), but also on wider questions about law itself. Is following the state’s rules enough to satisfy your duty of care to your fellow man? Can state regulation replace moral and situational judgment, effectively “automating” the unstable human relationships on which social reproduction depends? Finally, can we rely on legal rules to deliver a person safely from one side of the street to the other, in the same way we’d trust a bridge to deliver us safely across a river? In short, are legal rules a form of infrastructure?  

Joanna Grisinger, Center for Legal Studies, Northwestern University.  “The Highs and Lows of Airline Travel: Consumer Rights, Airlines, and the Civil Aeronautics Board”

In the 1960s and 1970s, as soon as Americans began traveling by air in record numbers, they began complaining about it. Passengers took offense at race discrimination, sex discrimination, discrimination against physically disabled passengers, discrimination against non-VIPs, delayed and cancelled flights, lost luggage, the lack of seatbelts in airplane bathrooms, and the absence of hot dogs from airline menus. Aggrieved passengers turned to the federal Civil Aeronautics Board, demanding that the federal government put passengers at the center of its regulatory efforts. This clash between competing definitions of the public interest forced the board to reorient its traditional reactive approach to enforcing the law, and to adopt more proactive measures that established rules for passengers and airlines alike.

Weekend Roundup

• The Irish Legal History Society will hold its annual general meeting on November 29.  Following the meeting John G. Gordon will lecture on “‘Where there’s a Will there’s a Contest’: The Will of the Very Rev Frank Henry PP: From Carrickfergus to Rome”  (Law Society Gazette).
  

• The Centre for Law and History Research (Law and History Network) at the University of Bristol will host a seminar by Graham Moore, an Eighteenth-Century Collections Researcher at The National Archives on Confederacy, treason, or robbery? Defining piracy in the seventeenth-century High Court of Admiralty.
  

• A notice of Deserted Wives and Economic Divorce in 19th Century England and Wales: For Wives Alone, on Section 21 of the Matrimonial Causes Act of 1857, which allowed deserted women to have their feme sole status. Professor Olive Anderson died in 2015 before completing the book. Northumbria University professor academic Dr. Jennifer Aston subsequently cam across the manuscript and, with the support of Andersons’ daughters, completed it.
  

• On November 8, David Wilkins, University of Richmond, delivered the address “Apart & Akin,” on “the shared histories and legal statuses of Native peoples and African Americans” at  Appalachian State University (The Appalachian).
  

• The University of Chicago's notice of Samuel Fury Childs Daly's new book, Soldier's Paradise: Militarism in Africa after Empire. 
  

• Yale Law School's notice of Keith E. Whittington’s The Impeachment Power (Yale).
  

• Kate Masur discussed her graphic history Freedom Was In Sight: A Graphic History of Reconstruction the Washington D.C. Region at the Smithsonian National Museum of African American History and Culture (YouTube).
  

• Carl Rice, a visiting assistant professor of Greek and Roman studies at Vassar College, lectured on “Roman Religion and the Citizens of Empire, 200-450 CE,” at the Center for Medieval and Renaissance Studies at Binghamton University (Pipe Dream).
  

• Korematsu v. United States was re-argued on its 80th anniversary in an event sponsored by the Robert H. Jackson Center at George Washington University Law School (YouTube).
  

• Stephen Sachs summarizes his review of Jack Balkin's Memory and Authority (Volokh Conspiracy).
  

•  ICYMI: The 18th‑Century Origins of Recess Appointments (History).  Uncovering the Legal Records of France’s Once-Largest Jewish Community--an 18th-century pinkas, in Metz (Mosaic).

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

 

Jacobsen's "Jackson's Judges"

Jackson’s Judges: Six Appointments Which Shaped a Nation, by John Gregory Jacobsen, is now out from Covenant Books.  Dr. Jacobsen “earned his PhD in history at the University of Nebraska and currently serves as a pastor and continues to teach history.”  More.

During his two terms as Chief Executive, Andrew Jackson made six appointments to the United States Supreme Court, more than any nineteenth-century president. Ranging from the famous to the virtually unknown, this group together reflected what may be described as their appointer's nationalist-states' rights dual constitutional personality. They consisted of three late Marshall Court appointees: John McLean of Ohio in 1829, Henry Baldwin of Pennsylvania in 1830, and James Wayne of Georgia in 1835, and three appointments at the onset of the Taney era: Roger Taney of Maryland and Philip Barbour of Virginia in 1836, and John Catron of Tennessee in 1837. Together, these six justices transformed the Supreme Court. Although two earlier-appointed justices sat on the bench into the 1840s, and despite twelve additional appointments made under seven subsequent presidents, Jackson's judges, at least until the four wartime appointments of Abraham Lincoln, formed the core of the Taney Court. Such dominance did not equal unity, however, as Justices McLean and Wayne proved strong nationalists. Nor were Jackson's picks the Court's most extreme members of the antebellum era, for Martin Van Buren's two later appointments became the most agrarian, states-rights voices of the Taney era. Jackson's judges, like the Court itself, elude simple categorization.

As a study, Jackson's Judges examines the lives and jurisprudence of his six Supreme Court appointments. Its uniqueness lies in the framework; the subject is not the Marshall or Taney Court, but Jackson's judges. Joining judicial biography with case analysis, the study examines each justice in separate chapters, forming six largely self-contained, legal-focused biographies. Analysis includes personal information, political connections, and jurisprudential background and credentials. The heart of each chapter is an in-depth analysis of the subject's most profound or trademark opinion. Each justice is then considered for his contribution to constitutional history. Following a survey of the Marshall and Taney Courts is an analysis of the life and presidency of Andrew Jackson with special emphasis on his background and relationship with judiciaries. This fascinating study shows how, through six appointments to the United States Supreme Court, Andrew Jackson reflected his own dual constitutional personality while doing more than any nineteenth-century president to shape the American nation.

--Dan Ernst

Rapallo on Congressional Power to Investigate Crime

David Rapallo, Georgetown University Law Center, has posted Congress’s Power to Investigate Crime: Did Trump Kill Kilbourn? which is to appear in the NYU Journal of Legislation and Public Policy:

Can Congress investigate crime? Targets of congressional investigations have tried to argue for decades that the Constitution grants Congress no authority to investigate illegal conduct, but instead vests this power exclusively in the executive and judicial branches. Former President Donald Trump was one of the most recent litigants to make this claim, repeatedly invoking a Supreme Court case from 1881, Kilbourn v. Thompson, despite the fact that the Court condemned this opinion decades ago as "severely discredited." In contrast, Congress has successfully asserted its own constitutional authority to investigate all types of activity-including illegal conduct-not to prosecute the offenders, but to inform legislation and fulfill its various other legislative branch responsibilities.

This Article sheds light on this recurrent debate by tracing its evolution across three historical periods. Since Kilbourn is central to the claims of targets of congressional investigations, the Article begins with a reexamination of that case. It unearths surprising new details about Congress's original investigation and shows how the Court devalued Congress's investigative function, mischaracterized Congress's contempt power as judicial in nature, and adopted an approach that would require Congress to yield to other branches' parallel investigations. Second, a review of more than 100 subsequent court decisions tracks the dismantling of Kilbourn's premises over time. It shows how the Court corrected its errors, recognized Congress's investigative power as derived from its legislative branch authority rather than having judicial origins, and approved numerous congressional investigations while parallel criminal inquiries were ongoing. Third, this Article examines Trump's extensive but ultimately unsuccessful campaign before courts of all levels-including the Supreme Court-to resuscitate Kilbourn to block Congress from investigating his alleged crimes. In response to the question of whether Congress may investigate crime, this Article concludes that the answer is undoubtedly yes. Rather than bringing Kilbourn back to life, Trump's efforts had the opposite effect, creating a surfeit of new precedents that solidified Congress's authority.

--Dan Ernst

Graber on the Section 3 of the 14th Amendment

Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section 3 of the Fourteenth Amendment: Is Trump's Innocence Irrelevant? which is forthcoming in the Maryland Law Review:

Much debate over whether former President Donald Trump should be disqualified under Section 3 of the Fourteenth Amendment focuses on matters tangential to whether the events of January 6, 2021, were an insurrection and whether Trump engaged in that insurrection. Debate centers on the role of Section 3 in the Reconstruction Project, whether Section 3 is self-executing, whether disqualification is a punishment that requires a criminal conviction, whether Section 3 is restricted to the Civil War, whether Presidents are exempt from disqualification, and whether the Presidency is exempt from disqualification. The existing literature rarely delves deeply into the historical sources, either assuming that the persons responsible for Section 3 were largely working from a tabula rasa or, in the manner of advocates, cherry-picking favorable citations, often wrenching them out of context.

The following pages are part of a project that engages in an exhaustive survey of the Congressional Globe, case law, legal treatises, and contemporaneous commentaries to determine how persons when Section 3 was framed and ratified would have responded to contemporary questions about the implementation of that constitutional provision. This survey supports the following conclusions. First, the constitutional disqualification of government officials who violated their oath of office was central to the Fourteenth Amendment’s goal of ensuring government by persons who could be trusted to be faithful to the Constitution. Second, with one notable exception, Americans during the 1860s regarded Section 3 as self-executing. Third, Section 3 when framed was thought to be an additional qualification for officeholding and not a punishment for crime. Fourth, Section 3 of the Fourteenth Amendment was intended to bar from office any past or present state or federal officeholder who engaged in an insurrection, not just persons who participated in what members of the 39th Congress referred to as “the late rebellion.” Fifth, the persons who framed Section 3 thought Presidents of the United States are officers of the United States who are disqualified from holding present or future federal or state offices if they engage in an insurrection after or while holding office. Sixth, the persons who framed Section 3 thought that Presidency of the United States was among the offices under the United States that past and present officeholders who participated in insurrections were disqualified from holding.  

This paper speaks of what certain persons responsible for the Fourteenth Amendment thought and did rather than the original meaning of Section 3. Original meaning is a freighted term and often is used to compel contemporary constitutional decisions. In many cases, while we can determine what particular framers thought about some matters—for example, about whether Section 3 is self-executing—no good evidence exists as to what the average person thought or if the average person had any thoughts on the subject at all. Moreover, while the findings below are relevant to contemporary constitutional decision-making, they should not be decisive. The dead do not rule the living. The question for the present is whether any constitutional or political change has taken place between the time the Fourteenth Amendment was framed and ratified and the present that would justify acting inconsistently with the framing expectation that oath-breaking Presidents should be disqualified under Section 3.

--Dan Ernst

Christian Culture and Society in Later Catholic England

Christian Culture and Society in Later Catholic England: Studies in Memory of F. Donald Logan, edited by Travis Baker, has been published in Brill’s series,  Later Medieval Europe.  Contributors include the legal historians Paul Brand, Charles Donahue, and Richard Helmholz:

This book in memory of F. Donald Logan explores different aspects of Christian culture and society in England from the twelfth to the sixteenth century. Although this period has traditionally been interpreted in terms of decline and decay, this excessively gloomy picture has slowly given way over the last eighty years or so to a more positive view of Christian civilization during these centuries. The twenty-two studies brought together here seek to build on this ongoing reassessment of Later Catholic England, especially in those areas in which Professor Logan himself had done so much to deepen our understanding of Christian English society.

 --Dan Ernst

Baker to Lecture on "The Royal Prerogative and the Judges"

[We have the following announcement.  DRE.]

The Lord Judge Memorial Lecture in Legal History, Wednesday 20th of November 2024, 17:45, Middle Temple Hall. Hosted by the Middle Temple Historical Society.  

Prof. Sir John Baker KC (Hon), LLD, FBA, Emeritus Downing Professor of the Laws of England at the University of Cambridge will deliver the inaugural Lord Judge Memorial Lecture in Legal History, entitled “The Royal Prerogative and the Judges” in Middle Temple Hall on Wednesday 20 November.

Prof. Baker will consider the relationship between the judges and the royal prerogative from a historical perspective, exploding some myths. It has always been for the judges to decide which of the king’s prerogative powers can be reviewed by the courts and which cannot, but it took some time to find effective means of control. The principal issues in the early-modern period were (1) locking people up without reasons, (2) setting up new tribunals outside the common law, (3) creating new forms of taxation, and (4) legislating by proclamation without Parliament. The procedures which eventually put an end to such powers, notably habeas corpus, were developed (notably by Middle Templars) in the reign of Elizabeth I.

The legal issues addressed at that time may be compared with those resulting from our ‘elective dictatorship’, Parliament having become an instrument whereby a modern Government can exercise more absolute power than that formerly attributed to the King’s prerogative.

This event is taking place in Middle Temple Hall and will be streamed live. This page is for tickets to attend in person.  To book a virtual ticket to attend online, click here.   We will not be able to admit anyone into the Hall with a virtual ticket.

Student members (including transferring lawyers) must attend the lecture and reception in order to be awarded the Qualifying Session.

Please note that there are certain rules and customs that members and guests are expected to observe when attending formal dinners at the Inn. [Dress in Business Attire (with Gowns for all Members of the Inn).  More on attire information here.]

Smith and Vine, "Material and Digital Archives: The Case of Wills"

Transactions of the Royal Historical Society is providing open access to the newly published article "Material and Digital Archives: The Case of Wills," by Harry Smith (King's College London) and Emily Vine (University of Birmingham). The abstract:

The range of digital sources available to historians has expanded at an enormous rate over the last fifty years; this has enabled all kinds of innovative scholarship to flourish. However, this process has also shaped recent historical work in ways that have not been fully discussed or documented. This article considers how we might reconcile the digitisation of archival sources with their materiality, with a particular focus on the probate records of the Prerogative Court of Canterbury (PCC). The article first considers the variety of digital sources available to historians of the United Kingdom, highlighting the particular influence of genealogical companies in shaping what material is available, how it has been digitised and how those sources are accessed. Secondly, we examine the PCC wills’ digitisation, what was gained and what was lost in that process, notably important material aspects of the wills. This article does not seek to champion archival research in opposition to digitally based scholarship; instead, we remind historians of the many ways in which the creation of sources shape their potential use, and call on historians to push for improvements in the United Kingdom’s digital infrastructure to avoid these problems in future.

Read on here.

-- Karen Tani

ASLH Surrency Prize to Esther Sahle

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Surrency Prize. About the prize:

The Surrency Prize is awarded annually for the best article published in the Society’s journal, the Law and History Review, in the previous year. The prize is named in honor of Erwin C. Surrency, a founding member and first president of the Society and for many years the editor of its former publication, the American Journal of Legal History.

This year's award went to Esther Sahle (Freie Universität Berlin), for “Legal Pluralism, Arbitration, and State Formation: The Rise and Fall of Philadelphia’s Quaker Court, 1682–1772,” Law and History Review 41:4 (2023): 653-681. The citation:

Esther Sahle’s “Legal Pluralism, Arbitration, and State Formation: The Rise and Fall of Philadelphia’s Quaker Court, 1682–1772” combines an ingenious reading of archival records, an elegant analytical framework and a lucid, layered narrative. The result is an article of far-reaching insight. Examining the 284 disputes arbitrated over ninety years at Philadelphia’s monthly Quaker meetings, Sahle traces how—in procedure, subject matter and enforcement—the Quakers’ dispute resolution system functioned as a forum typical of contemporary Atlantic legal fori. This new understanding leads to others. Readers learn that the Quaker arbitration system, rather than a static practice explained by religious commitments, evolved in relation to the reliability of Pennsylvania’s public courts. Friends used their forum to enforce contracts, a community legal process that delivered commercial advantages amid political turbulence and state incapacity. Readers also learn how and why this community forum declined as official courts became more dependable, financial relationships with non-Quakers grew and the practicability of information-based enforcement declined. Friends increasingly took their business to the colonial state, strengthening it in the process. This story offers a novel view of the dynamics of legal pluralism, state-building, and economic change—notably, one arising not from official sources but rather from the activities of colonizing subjects in British North America. In its methods and analysis, Sahle’s article offers important lessons for legal historians working across geographies, empires and eras.

Congratulations to Professor Sahle!

-- Karen Tani

Kreis on Regulating Reproduction in Redeemer Georgia

Anthony Michael Kreis, Georgia State University College of Law, has posted Sex and Control in Redeemer Georgia, which is forthcoming in the Georgia State University Law Review:

This essay explores the interplay of history, law, and morality behind the first abortion law in Georgia. Examining the philosophical underpinnings of liberty and equality as articulated in Georgia's constitutional history through time, the essay highlights the moral contradictions inherent in the legal frameworks of Reconstruction Georgia. The origin of Georgia's 1876 abortion law contains multitudes-rooted in race-based contestations for political power, the sociological evolution of medical practice, and evolving attitudes on individual rights. At times, white elites used abortion to attack Yankee culture and stir up racist fears about moral contagion associated with Radical Republicans. To this end, when read against political time, the campaign to regulate motherhood and criminalize reproductive choice was not simply grounded in morality claims about protecting fetal life-a significant theme in the mid-nineteenth century campaign against abortion nationally-but also about enforcing other race and sex crimes and controlling the freedperson labor force in an era of political uncertainty and constitutional upheaval. Abortion surfaced as a political issue in Georgia at a time and in a manner that makes it inextricably linked to the politics of Reconstruction and Redemption.

--Dan Ernst

ASLH Sutherland Prize to Jonathan Connolly

Continuing our round-up of the awards and prizes announced at the 2024 meeting of the American Society for Legal History, we turn now to the Sutherland Prize. About the prize:

[N]amed in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually, on the recommendation of the Sutherland Prize Committee, to the person or persons who wrote the best article on the legal history of Britain and/or the British Empire published in the previous year.

This year's winner was Jonathan Connolly (Princeton University), for “Reading Morant Bay: Protest, Inquiry and Colonial Rule,” Law and History Review 41 (2023): 193-216. The citation:

Jonathan Connolly’s insightful, tightly-argued and compelling essay uncovers a new and deeper understanding of the 1865 Morant Bay Rebellion. This uprising in post-emancipation Jamaica, and its violent suppression, have been widely interpreted as a “transformative crisis of empire” that simultaneously consolidated racist attitudes among imperial Britons and engendered seminal British debates about justice, sovereignty and the rule of law. By focusing on legal process, and debates over adherence to process, Connolly shows how law produced meaning in the aftermath of the rebellion. He traces the ways in which a royal commission of inquiry, swiftly assembled to investigate events in Jamaica, adopted a legalistic focus on the “proximate cause” of rebellion. This lawyerly focus, combined with the racialized bias that led commissioners to discount testimony provided by black Jamaicans, enabled them to narrowly limit the events to be investigated. While protesters in Jamaica had engaged in widespread and systematic critique of colonial misgovernment, Connolly argues, commissioners successfully reframed that scandal of misrule so that it was understood to be a scandal about the violent use of martial law by Jamaican Governor Edward John Eyre. This “process of discursive transformation” was completed in the subsequent prosecutions, and debates over those prosecutions, that made up the “Governor Eyre controversy.”

Congratulations to Professor Connolly!

-- Karen Tani

UVA's JD/MA History Program

Jason Vanger, a UVA law student, has published a full report in the Virginia Law Weekly of a recent information session on Virginia Law's longstanding joint J.D.-M.A. Program in Legal History.  The session was conducted by UVA professor Charles Barzun, who was himself an alumnus of the program.  Here is a taste:

The program is unique among joint degree programs at Virginia Law and elsewhere in that it imposes no additional time or financial burden on law students. Students earn both degrees in the same three years that it would take to earn a J.D., and students pay the same amount in tuition that they would pay for law school alone. The program accomplishes this by counting a number of classes toward both degrees, including required 1L courses like Torts or Constitutional Law, which have substantial historical content in the form of case law. On top of the regular course load for law students, participants will generally take one additional course in the history department for each semester of their 2L and 3L years.

--Dan Ernst

ASLH William Nelson Cromwell Article Prize to Katie A. Moore

We are continuing our recap of the prizes awarded at the recent meeting of the American Society for Legal History. This post is dedicated to the William Nelson Cromwell Article Prize ("awarded annually to the best article in American legal history published in the preceding calendar year by an early career scholar"). The 2024 winner is Katie A. Moore (UC Santa Barbara), for “To Counterfeit Is Death? Money, Print, and Punishment in the Early American Public Sphere,” Early American Studies 2 (2023): 233-271. The citation:

This article investigates how paper currency became a powerful site of meaning-making in seventeenth and early eighteenth-century America. Exploring the establishment of counterfeiting as a crime, it contends that colonial governments used these laws to legitimate paper money and produce state power. Moore’s study develops an innovative legal history of paper currency that several Advisory Committee members described as brilliant. Advisory Committee members felt that Moore’s interdisciplinary methods and careful attention to the materiality and social meanings of both specie and notes enrich legal history. The article not only deftly explores the legal regimes surrounding print money and counterfeiting, but also pushes readers to expand their understandings of what law is and how it operates through material artefacts and within a range of social milieus to produce state power. 

Congratulations to Professor Moore!

-- Karen Tani

Penn Symposium on History in Constitutional Interpretation

[We have the following announcement of the University of Pennsylvania Law Review’s symposium for Volume 173 The Uses (and Misuses) of History in Constitutional Interpretation. It will be held in-person and online on Friday, November 22, and Saturday, November 23.]

The Roberts Court has embarked on a constitutional revolution in many different areas of law, including reproductive rights, the Second Amendment, and the Religion Clauses. The Court’s conservative supermajority has repeatedly turned to history to justify and legitimate its decisions. Originalism is an important part of the Court’s language. It has recently adopted a new model of “text, history, and tradition” in important cases like Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Dobbs v. Jackson Women’s Health Organization, New York State Rifle and Pistol Association v. Bruen, and Kennedy v. Bremerton School District.

Because history is a central source of justification for the Roberts Court’s revolution, it is crucial to understand how history is being used—and sometimes misused and even manipulated—in its decisions.

Debates about the relevance of history to constitutional interpretation occurred in the 1980s and 1990s as the conservative legal movement was gaining prominence. Thirty years later, that movement is ascendant and controls the U.S. Supreme Court. Yet at this very moment of success, the Court’s conservative majority is not consistent in how it uses history. It alternates between many different forms of originalism, including its new emphasis on traditionalism. And sometimes—as in cases like Citizens United v. FEC, Parents Involved in Community Schools v. Seattle School Dist. No. 1, or Janus v. American Federation of State, County, and Municipal Employees—it dispenses with originalism altogether.

The affirmative action case from last year’s Term, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, presents an especially interesting example of how the majority, concurrences, and dissents relied on history from differing ideological perspectives. Reconstruction history does not support a colorblindness rule, and the different opinions offer a window into the uses and misuses of historical memory. In fact, the Congress that drafted the Fourteenth Amendment engaged in race-conscious remedies to address discrimination. Moreover, in the Court’s previous affirmative action decisions, even Justices who adhered to originalism repeatedly refused to discuss the original meaning of the Fourteenth Amendment. With the decision in favor of SFFA, the Court further embedded a malleable doctrine of text, history, and tradition into its jurisprudence.

This symposium seeks to bring together diverse scholars to publish leading scholarship addressing the many open questions about the role of history in constitutional interpretation, organized around Yale Law Professor Jack Balkin’s forthcoming book, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press 2024).

[Register here.  Schedule and CLE credit information after the jump.

Weekend Roundup

• Congratulations to Professor William Chester Jordan upon his receipt of the Barry Prize for Distinguished Intellectual Achievement awarded by the American Academy of Sciences and Letters.  Princeton University's notice is here.  
  

• From In Custodia Legis: "A Short History of the First Native American Women Lawyers and Judges in the United States."

• Paul Lombardo, Georgia State University  College of Law, will lecture on “Carrie Buck on Trial: A Centennial Retrospective” at Washington and Lee University on Monday, Nov. 18 at 5:30 p.m. in Hillel 101.
  

• Eric Muller, a leading legal historian of the Japanese-American "internment," took students in his “Lawyers in Justice and Lawyers’ Injustice” seminar at the University of North Carolina School of Law to Heart Mountain, Wyoming, over fall break.  "Students spent their mornings analyzing government documents and court cases, while afternoons were dedicated to exploring the museum’s exhibits and original structures. In the restored barracks and historic root cellar, the reality of what government lawyers helped implement became tangible."  More.
  

• Johnny Rex Buckles, University of Houston Law Center, reviews Lawrence A. Zelenak and Ajay K. Mehrotra's edition of Stanley Surrey's memoirs in the Florida Tax Review.
  

• Robert L. Tsai revies Aziz Rana's Constitutional Bind in The New Rambler.

• 
  An update on digitization at the National Archives. Among the newly digitized records are those related to the killing of Hattie DeBardelaben, rescued from obscurity by the Civil Rights Cold Case Records Review Board. 
  

• Jake Kobrick, Associate Historian at the Federal Judicial Center, has posted another Spotlight on Judicial History: The Codification of Federal Statutes on the Judiciary.
  

• The recording of that National Constitution Center session on Native Americans and the Supreme Court, with by Keith Richotte Jr., and Matthew L.M. Fletcher, is here.
  

• ICYMI:  David E. Kyvig on Clarence Thomas's Constitution (HNN).
  

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

Thank You, Marie-Amélie George!

We here at Legal History Blog are grateful Marie-Amélie George for her guest posts last month inspired by her new book, Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition (Cambridge University Press 2024).  If you would like to revisit them, here they are:

Introducing Family Matters!

Legal History from the Ground Up

Writing a History of Progress During a Period of Retrenchment

Collecting Oral Histories

Using Oral Histories

The Pre-Publication Gauntlet

Stories on the Cutting Room Floor

Thank you, Professor George! 

CFP: Regulating the Global Movement of Care

 [We have the following CFP.  DRE]

W G Hart Workshop 2025: Regulating the Global Movement of Care.  Institute for Advanced Legal Studies, London.  11-12 June 2025

We invite abstracts (of 250-300 words) for the 2025 W G Hart Workshop focusing on the role of law in regulating the global movement of care. Given the historical and contemporary significance of the issue of the movement of carers, we welcome abstracts that explore the legal regulation of care (including comparative and international aspects) through the lens of a variety of disciplines: law, history, anthropology, politics, sociology, criminology, and creative arts.

The Workshop is organised around four themes - precarity, advocacy, protection, and kinship networks (see below) - reflecting the varied facets through which law's role in regulating the movement of care can be examined. Care is broadly defined and includes healthcare, social care, domestic care, as well as unpaid care. Legal requirements often create precarity by imposing stringent professional regulatory standards on migrant care workers or permitting the claw back of visa fees. Law may also be a tool in the hands of carers and individuals and organisations who support them to battle against exploitation. Legal regulation may, in some instance, offer protection to migrant care workers. Law, in particular immigration requirements, can also define relationships between migrant carers and their broader kinship networks both in their host countries and in the countries that they come from.

Abstracts should be emailed to adrienne.yong@city.ac.uk and p.saksena@leeds.ac.uk by 5pm on Monday, 6 January 2025. Please also include a brief biography of the speaker in the submission. Further details on the workshop themes are included below.

Academic Directors:

Dr Adrienne Yong (City St George's, University of London)
Dr Priyasha Saksena (University of Leeds)
Dr Amanda Spalding (University of Leeds)
Dr Amrita Limbu (University of Leeds)
Professor Marie-Andrée Jacob (University of Leeds)

More after the jump.

Desierto et al. on the Political Economy of Magna Carta

Desiree Desierto and Mark Koyama (George Mason University) and Jacob Hall (University of Pennsylvania) have posted Magna Carta:

King John Granting Magna Charta (NYPL)

Magna Carta, a pivotal moment in history, institutionalized constraints on royal power. We model it as an optimal agreement between two coalitions capable of violence: the king’s loyalists and the rebel barons. This agreement is more likely when the king extracts large rents; the distribution of rents among barons is egalitarian; and barons have large resources that are non-appropriable by the king. Under these conditions, even the baron that enjoys the largest rents would be willing to lead a rebel coalition that has sufficient resources to defeat the loyalists. We test predictions with data on the universe of barons in England between 1200-1270.

--Dan Ernst

Post in Conversation with Gordon on the Taft Court

William H. Taft (NYPL)

The Supreme Court Historical Society has just added an event in December: Robert Post in conversation with Robert W. Gordon, on Post’s The Taft Court: Making Law for a Divided Nation, 1921-1930, which is volume 10 of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Robert Post is a Sterling Professor of Law at Yale Law School, where he served as dean from 2009 to 2017.  Robert W. Gordon, Professor of Law Emeritus at Stanford University, is a great American legal historian.  The event will take place on December 16, 2024 at Noon EST via Zoom.  Register here.

--Dan Ernst

Call for Applications: Constitutional Accountability Center Scholar-in-Residence program 2025-26

Via the Constitutional Accountability Center ("a nonprofit, public interest law firm and think tank dedicated to making real the progressive promise of our Constitution’s text, history, and values"), we have the following posting:

CAC invites applications for its 2025-2026 Scholar-in-Residence program. CAC’s Scholar-in-Residence will work independently on research and writing on a topic of mutual interest, for one year, while participating in the life of CAC’s ongoing work in litigation, joint scholarship, communications, and collaboration with progressive movement partners.  During this year, the Scholar-in-Residence may work remotely, but would also be expected to come to CAC’s office in Washington, DC on occasion throughout the residency. 

Constitutional scholarship is the foundation of CAC’s work. Our scholarship shows that across a broad range of key issues, the Constitution’s text and history command progressive results. CAC’s scholarly work provides the deep historical support that makes our legal arguments stand out, and builds a comprehensive narrative of the Constitution that is necessary to achieve lasting victories.

This scholar-in-residence program will provide the selected candidate an unprecedented opportunity to work on a project in an area that is congruent with the focus of CAC’s mission, including (but not limited to) Constitutional and Legal Studies, History, Political Science, African-American Studies, and the humanities more generally. Potential projects could focus on such subjects as lifting up often neglected voices in the constitutional story (for example, Black, Native American, and immigrant activists who helped shape the Constitution); the ways that structural reforms might better align our institutions toward democratic values and genuine inclusion; or the exploration of broader Constitutional understandings in advance of the upcoming 2026 commemoration of the 250^th anniversary of the United States, among others.

Responsibilities will include, but not be limited to, the following:

• Conduct research and scholarship in a field of inquiry that intersects with CAC’s mission;
• Produce written products that could include, but are not limited to, law review articles or other scholarly essays, and articles in popular media such as The New York Times and The Atlantic;
• Brief CAC staff on research progress, and help inform the direction of CAC’s existing scholarship;
• Give two public presentations at (in person or virtual) events to educate the public and organizational partners about research progress and findings.

The Scholar-in-Residence will work in collaboration with CAC’s Director of Human Rights, Civil Rights, and Citizenship, within the CAC Think Tank.  

More information is available here.

-- Karen Tani

ASLH William Nelson Cromwell Book Prize to Blaakman

The American Society for Legal History has announced the winners of its 2024 book prizes. This post is dedicated to the William Nelson Cromwell Book Prize. About this prize:

The William Nelson Cromwell Foundation Book Prize is awarded annually to the best book in the field of American legal history by an early career scholar. The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured. 

This year's award went to Michael Blaakman (Princeton University) for Speculation Nation: Land Mania in the Revolutionary American Republic (University of Pennsylvania Press, 2023). The citation:

Michael Blaakman’s Speculation Nation makes a compelling case for placing land speculation at the very center of our understanding of the American project.  Blaakman demonstrates how the public domain was constructed – and how legislators actively created a secondary market for futures and speculative rights to land on the frontier.  These land grants, contingent though they were, often predated and essentially presaged the dispossession of Native Americans.  Lucid, deeply researched, and beautifully rendered, Speculation Nation shows, in exquisite detail, how this process unfolded in the aftermath of the American Revolution.

Congratulations to Professor Blaakman!

-- Karen Tani

ASLH John Phillip Reid Book Award to Penningroth

The American Society for Legal History has announced the winners of its 2024 book prizes. This post is dedicated to the John Phillip Reid Book Award. About the award:

The John Phillip Reid Book Award is awarded annually for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The prize is named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues. 

This year's award went to Dylan C. Penningroth (University of California, Berkeley) for Before the Movement: The Hidden History of Black Civil Rights (Livewright, 2023). The citation:

Grounded in extensive and painstaking research in local court records, Dylan Penningroth’s Before the Movement brings to life ordinary African Americans’ multiple interactions with law and the legal system in the century that preceded the Civil Rights Movement. In making visible African Americans’ legal tenacity and sophistication when it came to everyday disputes over property, contract, and church governance, Penningroth shows not only that African Americans used the law for purposes that cannot be reduced to their struggles against racial oppression, but also how such uses of the law laid the groundwork for those struggles. As such, Before the Movement profoundly reshapes our understanding of the history of American civil rights.

Congratulations to Professor Penningroth!

-- Karen Tani

Powell Imagines the "Harlan [II] Court"

Relatedly, H. Jefferson Powell has published The Harlan Court: A Constitutional Alternate History, in a symposium for Walter Dellinger in the North Carolina Law Review:

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and its relevance today. The “Harlan Court” of Dellinger’s imagination would have reached its decisions through opinions that generally built on the legacy of the Warren Court by the logical development of precedent, a refusal to practice the Burger Court’s frequent tactic of obliquely undermining or underenforcing decisions a majority disapproved, and a commitment to persuading the reader’s judgment rather than imposing judgments by rhetorical fiat. Dellinger thought the characteristics of the “Harlan Court” he imagined were equally valuable to correctly identifying the most common error he saw in early twenty-first century constitutional law: the belief or assertion that difficult constitutional issues can be resolved through some method of decision that avoids the exercise of judgment by the decision-maker.

--Dan Ernst

Hogan on Holmes, Frankfurter, and Both Harlans

Gerard Hogan, Judge of the Irish Supreme Court, has published Spring-Cleaning the American Legal Pantheon? Reputations Rivalled: Justices Harlan the First and Holmes & Justices Frankfurter and Harlan the Second, in the Loyola University Chicago Law Journal:

John Marshall Harlan II (wiki)

In the general common law world, few things are more contestable than what constitutes judicial greatness. Is it the capacity to anticipate developments in the law or to champion new ideas that, in time, will become accepted? Or is it the elegance of judicial style? Or is it a combination of some or all of these things? These are the subjects of endless jurisprudential debates. Yet no matter where you stand in this debate, one thing is clear: the U.S. Supreme Court has been fortunate in having had among its ranks some of the greatest judges which the common law world has ever produced. In this Article, I wish to explore the reputation of four great justices of that Court. While Oliver Wendell Holmes has his critics, his greatness can scarcely be denied. Yet I contend that that very aura which surrounds Holmes has somewhat obscured the real achievements of one of his erstwhile colleagues, John Marshall Harlan, who may be said to have outshone him in certain respects. So the first part of this Article seeks to compare and contrast Holmes and the first Harlan and to inquire why Holmes has won the prize of history, while Harlan's reputation nowadays rests almost exclusively on his famous dissent in Plessy v. Ferguson.

In the second part of this Article, I seek to compare and contrast the achievements of Felix Frankfurter with those of the other John Marshall Harlan, the grandson of the first Harlan. I contend that Frankfurter's inflexibility, dogmatism, and personal vanity prevented him from achieving his full judicial potential and that, in this respect, he has been outshone by the Harlan II, whose flexibility, modesty, and a nuanced understanding of the judicial role has distinguished him as one of the great Justices of the post-World War II era.

--Dan Ernst