Tuesday, June 15, 2021

Reiter on wounded feelings in Quebec

 We missed this back in 2019, when Eric H. Reiter (Concordia University) published Wounded Feelings: Litigating Emotions in Quebec, 1870-1950 with the University of Toronto Press. In 2020, the book won the Canadian Historical Association's Best Scholarly Book in Canadian History Prize and the Governor General's History Award for Excellence in Scholarly Research. From the publisher: 

 Wounded Feelings is the first legal history of emotions in Canada. Through detailed histories of how people litigated emotional injuries like dishonour, humiliation, grief, and betrayal before the Quebec civil courts from 1870 to 1950, Eric H. Reiter explores the confrontation between people’s lived experience of emotion and the legal categories and terminology of lawyers, judges, and courts. Drawing on archival case files, newspapers, and contemporary legal writings, he examines how individuals narrated their claims of injured feelings and how the courts assessed those claims using legal rules, social norms, and the judges’ own feelings to validate certain emotional injuries and reject others.

The cases reveal both contemporary views of emotion as well as the family, gender, class, linguistic, and racial dynamics that shaped those understandings and their adjudication. Examples include a family’s grief over their infant son’s death due to a physician’s prescription error, a wealthy woman’s mortification at being harassed by a conductor aboard a train, and a Black man's indignation at being denied seats at a Montreal cinema. The book also traces an important legal change in how moral injury was conceptualized in Quebec civil law over the period as it came to be linked to the developing idea of personality rights. By 1950 the subjective richness of stories of wounded feelings was increasingly put into the language of violated rights, a development with implications for both social understandings of emotion and how individuals presented their emotional injuries in court.

Praise for the book:

 "Wounded Feelings is a very rich book that less seeks to provide a simple explanation of what emotional suffering was meant to be than to use discussions of such feeling as an access point to how people considered questions of self, reputation, bodily autonomy, and personal rights." - Katie Barclay

"Wounded Feelings is an excellent study of how Quebec individuals, lawyers, and judges dealt with legal claims touching broadly on issues in the realm of the emotions. Building on this growing interest in the history of emotions, Wounded Feelings provides fascinating discussion on cases that reveal much about day-to-day life, functional and dysfunctional families, and the social and power dynamics of class, status, age, race, and gender across an eighty-year period of Quebec history." - Bettina Bradbury

"The ground-breaking thesis of Wounded Feelings is supported by outstanding research and an abundance of sources." - Michel Morin

Further information is available here.

--Mitra Sharafi

Monday, June 14, 2021

Guest post: The 1960s lesbian bar that will haunt me forever

[This is one in a series of guest posts by Anna Lvovsky. Her book, Vice Patrol, examines the history of antigay policing at midcentury.]

I imagine all historians have at least one: that story that they cut for perfectible sensible, defensible, perhaps even good reasons, but that continues to haunt them whenever they think back on the book. For me, that story is about Helene’s, a lesbian bar operating in the fall of 1960 in the small borough of Roselle, New Jersey.

In many ways, Helene’s was similar to other lesbian bars in the 1960s. It ran under a veil of secrecy, with a front room catering largely to men giving way to a hidden bar with a jukebox, a dance floor, and tables crowded almost entirely by women. Patrons at Helene’s could cast off the outward trappings of femininity demanded of women in public, sauntering “with a heavy step” around the bar, waving cigarettes and buying each other drinks, wearing men’s slacks, sweaters, ties, and dress shoes. They also cast off any signs of deference in their interactions with the men who wandered in. After one liquor agent tried his luck asking a regular to dance, she cut him short. “You kidding me?” she asked and walked off with a flourish, to the barely concealed delight of the other women. Wary of drawing too much attention, the bartender sometimes warned patrons against dancing together, but on multiple occasions liquor agents reported seeing women clasping each other’s waists in the middle of the dance floor, gazing “very intimately” into each other’s eyes or swaying cheek-to-cheek.

It was that intimacy that made Helene’s stand out. Lesbian bars in the 1960s were often owned and operated by straight men, some (though not all) of whom viewed their patrons with a mix derision and cold business interest. But both the owner, Helene, and her bartender, Marilyn, were women, and both seemed to be part of the crowd they served. Helene’s routinely hosted the same group of friends; to an unusually degree, agents remarked on how many regulars they recognized. One night, Helene herself was standing by the jukebox when a woman dancing nearby reached out and began tickling her stomach, encountering some playful resistance before Helene gamely submitted to the attack. (At a hearing before the liquor board months later, Helene would testify that the woman was alerting her to an open zipper.) Another night, a patron named Lulu celebrated her birthday. That same group of women gathered around to serenade her while Marilyn emerged from the kitchen bearing a small cake. I wasn’t there, of course, but I imagine the liquor agents receding against the back walls of the bar, watching as the women crowded together, the lights dimmed, their faces lit up by candles.

Lulu’s birthday was the fourth time that liquor agents visited Helene’s that fall. Questioned in her kitchen about the “apparent lesbians” singing to Lulu, Helene was unflappable. “I don’t see any,” she replied. “How can you tell?” By that point, the agents had amassed more than enough evidence to convince the director that Helene was guilty of serving gay customers. Taking into account Helene’s clean record—and acknowledging “little, if any, improper conduct” by her patrons beyond the fact of being lesbian to begin with—the director issued a forty-day suspension rather than revoking her license. But the suspension may have been enough to doom the bar. Within roughly a year, the same location was being operated by a different owner, serving a clientele that raised no similar suspicions.

Happily, though, that wasn’t the end of Helene’s involvement in New Jersey nightlife. Five years later and roughly forty miles south, city officials in Long Branch would gather to celebrate the opening of Off-Broadway, a cocktail lounge with a nightly singer and a live band. A local reporter captured a picture of the mayor presenting flowers to the two owners: a “Miss Claire Tischler” and “her partner, Helene Borisewski.” The nature of the partnership, of course, remains unknown.

Helene passed away at the age of 103, about a year before I discovered these materials. Her obituary celebrated the same charisma and irrepressible spirit on display in her encounters with the liquor board, as well as her loving ties to a host of nieces, nephews, and friends. It made no mention of a spouse or partner. Nor did it bear any traces, really, of Helene’s life as a daring entrepreneur. I tried to contact a relative to ask if they might be interested in sharing more about Helene’s remarkable life, but I never received a response.

Few of these details appear in my book. With earlier drafts of my first chapter already far too long, the argument seemed to be disappearing behind the weight of too many anecdotes. Perhaps it would have made sense to dig deeper with additional leads from the family, I told myself, but the lack of response felt like a sign. Looking back, I suspect that I was also wary of following the research trail too closely—afraid that learning more about Helene’s might have led to a story that betrayed that vibrant, blissful place glimpsed, however briefly, in the records. Perhaps another historian, though, will pick up the trail, and write the account that Helene and her friends deserve.

Daniel on Hatton Sumners and the Court-Packing Plan

Josiah M. Daniel III, a Visiting Scholar in the Department of History of the University of Texas at Austin and a Retired Partner in Residence in the Dallas office of Vinson & Elkins, LLP, has published “What I Said Was ‘Here Is Where I Cash In’”: the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis, in the UIC John Marshall Law Review 54 (2021): 379-428.  From the introduction:

Hatton Sumners, 1938 (LC)
Later in the year, after Roosevelt had lost [the battle over the Court-packing plan], journalists Joseph Alsop and Turner Catledge published in the September 18th Saturday Evening Post an article titled “The 168 Days: The Story Behind the Story of the Supreme Court Fight,” in which, under a subheading of “No. 1 Opposition Man,” they reported that, immediately after the announcement, Vice President John Nance Garner, House Majority Leader Sam Rayburn, and [Chair of the House Judiciary Committee, Representative Hatton W.] Sumners returned in a taxi to the Capitol together:

After they had left the White House, after they had turned down past the Treasury, Hatton Sumners spoke to the men with him. “Boys,” he said, “here’s where I cash in my chips.” 
It was the first announcement of opposition to the plan . . . .

The journalists slightly misquoted Sumners’s pithy remark, and historians and legal scholars have almost uniformly perpetuated the mistake, countless times, to the present day. They have, moreover, misunderstood it.

--Dan Ernst

Saturday, June 12, 2021

Weekend Roundup

  • Current LHB Guest Blogger Anna Lvovsky discusses Vice Patrol: Cops, Courts, and the Struggle Over Urban Gay Life Before Stonewall, over at the ABA Journal’s Legal Talk Network.
  • OUP's History of International Law Collection is open-access until July 31. Load up here.\
  • We join those mourning the passing of Robert Katzmann, former chief justice of US Court of Appeals for the Second Circuit and an excellent scholar of courts, administration, and statutory interpretation. His Regulatory Bureaucracy: The Federal Trade Commission and Antitrust Policy (1981) was, among other things, an important contribution to the legal history history of the “proministrative state” for its demonstration of the different approaches of the FTC’s lawyers and economists to antitrust enforcement.
  • Best names in law and legal history: here and here.
  • We note, a little belatedly, that Evelyn Atkinson has reviewed Ex Parte Milligan Reconsidered: Race and Civil Liberties from the Lincoln Administration to the War on Terror, ed. Stewart L. Winger and Jonathan W. White (University Press of Kansas, 2020) on H-Nationalism.
  • Celebration of yesterday's 75th anniversary of the Administrative Procedure Act was, shall we say, muted, in our environs at least, but we were pleased to learn that Emily S. Bremer, Notre Dame Law, and Kathryn E. Kovacs, Rutgers Law, have compiled the Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946, which is forthcoming on HeinOnline.
  •  ICYMI: News and commentary on bans of Critical Race Theory arrive too fast for us to keep up, but note this comment by Jill Richardson, a doctoral student in sociology at the University of Wisconsin-Madison.

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

Friday, June 11, 2021

2021 Hurst Fellows

 The 2021 J. Willard Hurst Summer Institute in Legal History, co-sponsored by the University of Wisconsin Law School and the American Society for Legal History, runs June 13-26, 2021. The faculty co-hosts are Sarah Barringer Gordon (University of Pennsylvania) and Lauren Benton (Yale University). The Hurst Institute will be virtual this year.

Here are the 2021 Hurst Fellows:

  • Lauren Catterson (Hendrik Hartog/Princeton University Fellow), PhD candidate, University of Toronto
  • Jon Connolly (Morton Horwitz Fellow), Assistant Professor, University of Illinois at Chicago
  • Hardeep Dhillon (Harry Scheiber Fellow), ABF-NSF Post-Doctoral Fellow in Law and Inequality
  • Zachary Herz (Charles McCurdy/University of Virginia Law School Fellow), Assistant Professor, University of Colorado
  • Naama Maor (Mary Frances Berry Fellow), Postdoctoral Teaching Fellow, University of Chicago
  • Ángela Pérez-Villa (Rebecca Scott Fellow), Assistant Professor, Western Michigan University
  • Sarath Pillai (Hurst Alumni Fellow), PhD candidate, University of Chicago
  • Jake Subryan Richards (David Seipp Fellow in English Legal History), Assistant Professor, London School of Economics
  • Geneva Smith (Robert Gordon Fellow), PhD candidate, Princeton University
  • Lila Teeters (William Nelson Fellow), recently completed PhD, University of New Hampshire
  • Lauren MacIvor Thompson (Reva Siegel Fellow), Lecturer, Perimeter College
  • Kent Weber (Barbara Welke Fellow), Post-doctoral Fellow, Dartmouth College
You can read more about the fellows and their research projects here.

As the Hurst Institute's website explains, "the J. Willard Hurst Summer Institute in Legal History is a biennial event sponsored by the Institute for Legal Studies (UW Law School) in conjunction with the American Society for Legal History (ASLH). Each Hurst Institute is organized and chaired by a well-known legal historian and includes visiting senior scholars who lead specialized sessions."

Congratulations to all!

--Mitra Sharafi

Kearney and Merrill's "Lakefront"

Joseph D. Kearney, Marquette Law, and Thomas W. Merrill, Columbia Law, have published Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press):

How did Chicago, a city known for commerce, come to have such a splendid public waterfront—its most treasured asset? Lakefront reveals a story of social, political, and legal conflict in which private and public rights have clashed repeatedly over time, only to produce, as a kind of miracle, a generally happy ending.

Joseph D. Kearney and Thomas W. Merrill study the lakefront's evolution from the middle of the nineteenth century to the twenty-first. Their findings have significance for understanding not only Chicago's history but also the law's part in determining the future of significant urban resources such as waterfronts.

The Chicago lakefront is where the American public trust doctrine, holding certain public resources off limits to private development, was born. This book describes the circumstances that gave rise to the doctrine and its fluctuating importance over time, and reveals how it was resurrected in the later twentieth century to become the primary principle for mediating clashes between public and private lakefront rights. Lakefront compares the effectiveness of the public trust idea to other property doctrines, and assesses the role of the law as compared to more institutional developments, such as the emergence of sanitary commissions and park districts, in securing the protection of the lakefront for public uses.

By charting its history, Kearney and Merrill demonstrate that the lakefront's current status is in part a product of individuals and events unique to Chicago. But technological changes, and a transformation in social values in favor of recreational and preservationist uses, also have been critical. Throughout, the law, while also in a state of continual change, has played at least a supporting role.
Fulsome encomia by the likes of Banner and Hartog after the jump.

Thursday, June 10, 2021

Wagner, Marusek and friends on flags

 Anne Wagner (Université Lille – Nord de France) and Sarah Marusek (University of Hawai‘i Hilo) have co-edited Flags, Color, and the Legal Narrative: Public Memory, Identity, and Critique, now out with Springer. The collection includes lots of legal history, although it is not exclusively historical in its focus. From the press: 

The book deals with the identification of “identity” based on culturally specific color codes and images that conceal assumptions about members of a people comprising a nation, or a people within a nation. Flags narrate constructions of belonging that become tethered to negotiations for power and resistance over time and throughout a people’s history. Bennet (2005) defines identity as “the imagined sameness of a person or social group at all times and in all circumstances”. While such likeness may be imagined or even perpetuated, the idea of sameness may be socially, politically, culturally, and historically contested to reveal competing pasts and presents. Visually evocative and ideologically representative, flags are recognized symbols fusing color with meaning that prescribe a story of unity. Yet, through semiotic confrontation, there may be different paths leading to different truths and applications of significance. Knowing this and their function, the book investigates these transmitted values over time and space. Indeed, flags may have evolved in key historical periods, but contemporaneously transpire in a variety of ways.

The book investigates these transmitted values: Which values are being transmitted? Have their colors evolved through space and time? Is there a shift in cultural and/or collective meaning from one space to another? What are their sources? What is the relationship between law and flags in their visual representations? What is the shared collective and/or cultural memory beyond this visual representation? Considering the complexity and diversity in the building of a common memory with flags, the book interrogates the complex color-coded sign system of particular flags and their meanings attentive to a complex configuration of historical, social and cultural conditions that shift over time.

Praise for the collection after the jump:

Wednesday, June 9, 2021

Intro to Vice Patrol and the Rich Archives of Antigay Policing

[This is the first in a series of guest posts by Anna Lvovsky.] 

Thank you to the Legal History Blog for bringing me on board as a guest blogger! Pride month feels like an especially apt time for the invitation, since my recently published book, Vice Patrol, is a history of antigay policing before Stonewall. Curious about how undercover officers learned to imitate gay men in bars? Or why owners of gay bars retained football coaches and clothing boutique owners as expert witnesses at state liquor board proceedings? Or how trial judges secretly (and some not-so-secretly) dismissed solicitation charges brought by the vice squads? This is the book for you!

While working on the project, I was lucky to stumble on a number of extraordinary sources, from confidential American Bar Foundation interviews with trial judges in the 1950s to over 120 cases against LGBT-friendly bars in New Jersey to an extended correspondence with a former LAPD vice squad instructor. These sources raised some intriguing, and often painful, questions about both narrative economy and the ethics of historical representation, which I’ll be writing about in the coming weeks. What to do, for example, when archival confidentiality agreements give more protection to the officers who entrapped gay men than to those men themselves? Or how to showcase the richness of a forgotten queer social scene without losing the thread of your argument in anecdotes and asides?

First, though, I want to start with a quick introduction to the book. Vice Patrol began as an open question lingering around my favorite books in grad school. Histories of gay life typically focus on incredible grassroots stories of community-building and resistance.  Policing invariably hovers in the background of these stories, but it rarely enters the spotlight, and certainly not long enough to reveal its own internal politics and complications. I wanted to take a type of revised top-down approach to this story, examining the internal logic and daily operations of state regulation itself. Not least, I suspected that foregrounding the police might complicate some more familiar stories about gay history—suggesting, for example, that pockets of queer visibility often seen as relatively progressive might not be so progressive after all.

Taking a national lens, Vice Patrol focuses on three sites of enforcement: liquor charges brought against gay-friendly bars, entrapment by plainclothes officers, and clandestine surveillance in public bathrooms. A key goal of the book is to excavate the sheer complexity and sordidness of the police’s attempts to regulate queer life—the effort and ingenuity required to make an ostensibly “overt” urban subculture visible to the law to begin with. Much of the book, accordingly, examines how vice squads refined their most devastating methods, like enticement and peephole surveillance—as well as how they justified such practices to recruits who didn’t exactly see them as a model of intrepid crime-fighting.  But it also delves into the life of the courts, tracing the often-surprising battles that the police’s campaigns inspired in the legal system.

At heart, I see the book as making three core arguments, which I’ll briefly describe here. The first aims to disaggregate the law’s relationship with policed communities like gay men. The project of antigay policing often figures in histories as a monolithic site of repression, commanding the shared commitment of policemen, prosecutors, and judges alike. In fact, I argue, the vice squads’ campaigns inspired profound ambivalence and contestation, reflecting a range of personal, political, and institutional pressures from judicial impatience with petty cases to sympathy for individual defendants to qualms about sexual privacy to distaste for immoral police practices. These less visible disputes about the administration of the law, no less than legal actors’ shifting commitments to the regulation of sexual difference, shaped gay men’s legal rights and freedoms at midcentury.

The second argument looks at the link between policing and public understandings of gay life. Beyond disputes about the value of vice enforcement, the midcentury witnessed a live debate about the nature of homosexuality itself, with the public’s familiar presumptions often abutting against the wisdom of “expert” doctors, sociologists, and empirical researchers. I argue that legal battles around vice policing were a crucial arena for determining the relative power and ultimate legacy of these competing voices—both a site that brought the weight of the law to bear in choosing which bodies of knowledge were deemed authoritative, and one where their impact was often unexpected. Due to the unique pressures of the courts, especially, the political valence of these shifting paradigms was often different at trial than outside it, with developments celebrated as liberal redounding to have deeply repressive effects and vice versa. Shifting public understandings of sexual difference at midcentury, in short, cannot be fully understood without a history of the police.

Finally, the third argument has to do with the politics of knowledge in the criminal system. I argue that, amid these conflicting accounts of both the value of vice policing and the nature of homosexuality itself, the power of the police’s campaigns rested on the coexistence in the legal system of multiple competing understandings of gay life, dividing how policemen and judges understood the communities they regulated. Even as vice officers developed rarefied insights into gay cruising culture—and even as they used those insights to facilitate their arrests—officers defended those tactics in court by downplaying their insights, letting judges rely instead on their own (often-outdated) understandings of queer practice. These differences, in turn, repeatedly shielded controversial police practices from judicial scrutiny. In this sense, the rights and freedoms of gay individuals at midcentury did not just reflect the legal system’s disputes about the merits of antigay policing. They often reflected its deeper disagreements about the very thing being policed.

That’s a broad overview of the book’s core claims. Next time, something far more specific: the story of the lesbian bar that I had to cut from the book but am sure will haunt me to my dying days.

 

CFP: "Law v. Antisemitism"

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

Indiana University McKinney School of Law and Indiana Journal of Law and Social Equality (IU Maurer School of Law) present “Law vs. Antisemitism” March 13-14, 2022, a hybrid conference to be held on campus and virtually at IU McKinney School of Law, Indianapolis, Indiana.  Deadline: August 1, 2021.

Antisemitism has been called “the oldest hatred.” In the United States, as elsewhere, the law has been used both to perpetrate and to combat antisemitism, historically and today. Different aspects and instrumentalities of law, and specifically U.S. law, have been used to fight antisemitism, including the Constitutional separation of church and state, enshrined in the First Amendment to the United States Constitution; laws against discrimination in employment, housing, and other settings, that explicitly identify religious and ethnic groups as entitled to protection from discrimination; and “hate crimes” laws and sentencing enhancements applied to anti-Jewish violence. Despite these laws, however, there has been a recent resurgence in anti-Jewish violence and antisemitism more generally, ranging from online hate speech to cemetery desecration to the “Tree of Life” synagogue shooting in 2018. Does this mean the law has failed? Do we need new or different laws? Is there reason for doubt or skepticism about the efficacy of law in combating antisemitism?

At the same time, obstacles posed by antisemitism, while serious at times, have not kept Jews from entering American law and legal institutions. Despite a history of antisemitism in the legal profession and legal education, many Jews have found success as lawyers, law professors, and judges. Other Jews, both secular and religious, have looked to Jewish tradition to ground their involvement in 20th and 21st-century civil rights and economic justice movements, including challenging and defying what they believed to be unjust laws. Yet Jews encounter antisemitism on the left as well.

Possible topics for conference presentations and papers may include, but are not limited to:

  • Contending definitions of antisemitism itself (International Holocaust Remembrance Alliance (IHRA), Jerusalem Declaration on Antisemitism (JDA))
  •  Legal history as it relates to the regulation of Jewish immigrants and Jews in colonial and antebellum America
  • Title VII and employment antidiscrimination law as a tool against antisemitism
  • Antisemitism in the legal profession
  • BDS and Israel boycotts on campus and by state/local governments, international boycott law as applied to Israel
  • Jewish involvement/antisemitism in civil rights movements, including BLM
  • Holocaust reparations (e.g. legal remedies for looted art)
  • 1st Amendment speech issues (hate speech online and elsewhere, Holocaust denialism)
  • 1st Amendment religious freedom/free expression as these relate to Jews and Judaism
  • Jews and Whiteness, Jewish Anti-Black racism/Black antisemitism
  • Antisemitism and White nationalism/White supremacy
  • Antisemitism and antisemitic laws in American legal history
  • Jewish stereotypes and stereotype-based discrimination
  • Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
  • The use of zoning and land-use law by and against Jewish communities, the regulation of physical space for Jews in America
  • The history of Jewish lawyers and organizations involved in impact litigation in cases involving Jews and others
  • Zionism, Anti-Zionism, and antisemitism
  • Jewish prisoners’ rights

 We invite scholars to reflect on the relationship between Jews, Judaism, antisemitism, and the law, historically and in the contemporary environment. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects.

We anticipate that this Conference will take place in person in a hybrid format, and we are able to offer a limited number of travel grants to support attendance. We believe that giving scholars and attendees an opportunity to meet in person is very valuable, and we hope you will strongly consider it. However, in light of COVID-19 protocols and in the hope of attracting the widest range of presenters from throughout the U.S. and the world, presenting and  attending virtually are also possible..

The Indiana Journal of Law and Social Equality (IJLSE) is the primary conference co-host and publication outlet. Selected papers from the Conference will be eligible for publication in Volume 10 of the IJLSE. This mission of the IJLSE is to serve as an interdisciplinary academic forum for scholars, practitioners, policymakers, and students to contribute to society’s understanding of legal and policy issues concerning social justice and equality.

The Journal of Contemporary Antisemitism (peer-reviewed) has also agreed to publish selected papers from the conference in its Fall 2022 issue. The JCA focuses on antisemitism in the contemporary world (the post-Holocaust era), submissions may include relevant empirical studies dealing with the 19th or early 20th century. Specifically, the JCA focuses on 21st century forms of antisemitism, including but not limited to, antisemitism in the Islamic world, in Europe, on the left and the right of the political spectra, secular antisemitism, antisemitism in the church, and anti-Zionism. The JCA aims to provide a forum in which scholars from diverse political and intellectual backgrounds can analyze, debate, and formulate effective responses to the ever-evolving and insidious threat of antisemitism.

The Notre Dame Journal of Law, Ethics & Public Policy has also graciously agreed to provide special consideration for publication of one selected paper from the Conference. To be considered, the paper must relate to the mission of the JLEPP, “to explore the legal, ethical, and policy considerations of each topic within the framework of the Judeo-Christian intellectual and moral tradition. The JLEPP seeks to publish authors who address that tradition while forming a compelling analysis of issues relevant to the current legal landscape.” For consideration for inclusion in Volume 35, No. 1, full drafts (not Abstracts) must be received by July 15, 2021.

Tuesday, June 8, 2021

Welcome, Anna Lvovsky!

Professor Anna Lvovsky
Professor Anna Lvovsky (credit)

We are delighted to welcome Professor Anna Lvovsky to the blog this month. An assistant professor at Harvard Law School, she teaches American legal history, the history of policing, criminal law, and evidence. Her research focuses on "the legal and cultural dimensions of policing, judicial uses of professional knowledge, and the regulation of gender, sexuality, and morality."

One of her major research projects these past years has been her recently published book, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall (University of Chicago Press), which grew out of her award-winning dissertation. Vice Patrol is a history of state repression of queer communities in the mid-twentieth-century U.S. 

Cribbing here from the Press's description, the book 

trac[es] the tactics used to criminalize, profile, and suppress gay life from the 1930s through the 1960s, and the surprising controversies those tactics often inspired in court. Lvovsky shows that the vice squads’ campaigns stood at the center of live debates about not only the law’s treatment of queer people, but also the limits of ethical policing, the authority of experts, and the nature of sexual difference itself—debates that had often unexpected effects on the gay community’s rights and freedoms. Examining those battles, Vice Patrol enriches understandings of the regulation of queer life in the twentieth century and disputes about police power that continue today. 

For more about the book, as well as links to her other publications, check out her personal website.

Prior to joining the faculty at HLS, Professor Lvovsky clerked for two federal appellate court judges, the Honorable Michael Boudin on the First Circuit and the Honorable Gerard E. Lynch on the Second Circuit Court, and then was an Academic Fellow at Columbia Law School. She received her J.D. and Ph.D. (History of American Civilization) from Harvard and her B.A. from Yale.

Welcome, Anna Lvovksy! 

Conference funding for scholars in Global South

 [We share the following announcement, from the Max Planck Institute. It is also posted on the Legal Histories of Empire website here.]

The Max Planck Institute for Legal History and Legal Theory, based in Frankfurt am Main, Germany, is delighted to offer a bursary scheme for scholars who wish to attend and deliver a talk at the Legal Histories of Empires conference (29 June-1 July 2022 at Maynooth University, Ireland) and who are currently based in the Global South. The Institute is promoting research on, among others, legal transfers in the common law world, where the development of law on the Indian subcontinent is of particular interest, and the legal history of Ibero-America.

The Institute offers a bursary to attend the conference comprised of: flights to and from the conference, the registration fee, accommodation, a daily stipend, and the expenses associated with a visa application. Applicants must be currently based at an institution in one of the G77 Group of countries at the United Nations.

In order to apply for the scholarship, candidates will be asked to submit the following information: a statement of interest, the proposed topic to be delivered, and a short CV (no more than 3 pages). Applications should be sent to vogenauer@lhlt.mpg.de by 31 October 2021. Acceptances will be sent around mid-December.

--posted by Mitra Sharafi


Canellos, "The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero"

Simon & Schuster has published The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero, by Peter S. Canellos. A description from the Press:

They say that history is written by the victors. But not in the case of the most famous dissenter on the Supreme Court. Almost a century after his death, it was John Marshall Harlan’s words that helped end segregation, and gave us our civil rights and our modern economic freedom.

But his legacy would not have been possible without the courage of Robert Harlan, a slave who John’s father raised like a son in the same household. After the Civil War, Robert emerges as a political leader. With Black people holding power in the Republican Party, it is Robert who helps John land his appointment to the Supreme Court.

At first, John is awed by his fellow justices, but the country is changing. Northern whites are prepared to take away black rights to appease the South. Giant trusts are monopolizing entire industries. Against this onslaught, the Supreme Court seemed all too willing to strip away civil rights and invalidate labor protections. As case after case comes before the court, challenging his core values, John makes a fateful decision: He breaks with his colleagues in fundamental ways, becoming the nation’s prime defender of the rights of Black people, immigrant laborers, and people in distant lands occupied by the United States.

Harlan’s dissents, particularly in Plessy v. Ferguson, were widely read and a source of hope for decades. Thurgood Marshall called Harlan’s Plessy dissent his “Bible”—and his legal roadmap to overturning segregation. In the end, Harlan’s words built the foundations for the legal revolutions of the New Deal and Civil Rights eras.

Spanning from the Civil War to the Civil Rights movement and beyond, The Great Dissenter is an epic rendering of the American legal system’s greatest failures and most inspiring successes.
Advance praise:

"The Great Dissenter is a magnificent biography of the righteous legal trailblazer John Marshall Harlan.  Drawing upon a wealth of archival and published sources, deep-diving into the American horror-show of systemic racism, Canellos showcases Harlan as the rare Supreme Court Justice fighting for a more equitable economic system and civil rights for all people.  Highly recommended!" — Douglas Brinkley

"John Marshall Harlan is one of the most fascinating and important figures of modern America, and this book does him justice.  Carefully researched, and rewarding even informed readers with rich insight into Harlan’s life and work, The Great Dissenter is a must-read, both for students of the Supreme Court, and for those concerned about the past, present, and future of racial equality in the United States.” — Gabriel J. Chin

More information is available here.

-- Karen Tani

Saturday, June 5, 2021

Weekend Roundup

  • Nate Holdren, Drake University, discusses Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (2020) over at New Books Network. The book also just picked up another award: the Philip Taft Labor History Award, offered by the ILR School at Cornell University, in cooperation with the Labor and Working-Class History Association (LAWCHA). You can read the citation here.
  • The American Bar Foundation has announced its 2021-22 Doctoral and Post-Doctoral Fellows. We were excited to see a few historians on the list, including Hardeep Dhillon and Alex Reiss-Sorokin. You can read more about them and their research here.
  • Here's a web portal on Legal History at the  University of Michigan
  • The Call for the Asian Law and Society Association's conference is up. The conference will be virtual on 17-18 Sept.2021 with the theme: Law, Crisis and Revival in Asia. Proposals are due July 15. 
  • Over at UVic in British Columbia: Pooja Parmar and John McLaren (both of the U. of Victoria) gave a Dean's Lecture series, "Racism, Rights, and Empire in the Dominion of Canada: The Case of the Komegata Maru." Video here.
  • The following events at the annual Roosevelt Reading Festival of the FDR Presidential Library  are of potential interest to legal historians: Eric Rauchway, Why the New Deal Matters (6/15, 4pm); John A. Riggs, High Tension: FDR's Battle to Power America (6/15, 6pm); David Levering Lewis, The Improbable Wendell Willkie: The Businessman Who Saved the Republican Party and His Country, and Conceived a New World Order (6/16, 4pm).  More.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 4, 2021

Call: Stanford Law School Legal History Paper Prize

 [We share the following announcement.]

Applications are now being received for the Stanford Law School Legal History Paper Prize. The Stanford Center for Law and History invites paper submissions from SLS students (including all JD and Advanced Degree students) on any topic in legal history. The prize committee will consider only work completed during the 2020-2021 academic year. Please include a brief abstract at the beginning of your paper.

The prize committee will select one SLS student as the winner of the Legal History Paper Prize who will receive a $1000 cash award.

The prize committee members will include: Gregory Ablavsky, Rabia Belt, Robert Gordon, Lawrence Friedman, Amalia Kessler, Bernadette Meyler, and Brent Salter.

The application deadline is Friday, June 25, 2021.  To apply, and for conditions of entry, click here.  Please direct any questions to the committee chair, Amalia Kessler: akessler@law.stanford.edu.

--Mitra Sharafi

Thursday, June 3, 2021

Cohn and Schulz on John Hooker, CT Law Reporter

Henry S. Cohn, a judge trial referee of the Connecticut Superior Court, and Michael Schulz, a 2021 graduate of the University of Connecticut School of Law, have posted John Hooker, Reporter of Judicial Decisions, which appears in the Connecticut Law Review 53 (1921): 265-305.  Judge Cohn tells us:

John Hooker, who lived from 1816 to 1901, was a founder of Nook Farm, which became a literary community in Hartford, CT.  This community was where Mark Twain, Harriet Beecher Stowe and Charles Dudley Warner lived, as well as lesser known authors and politicians.  John Hooker was Harriet Beecher Stowe’s brother-in-law. Hooker’s wife, Isabella Beecher Hooker, was president of the Connecticut Suffrage Society.
He adds, from the article itself:
This article discusses the life and reportership of John Hooker, an early Connecticut Judicial Reporter and participant in the Women’s Suffrage movement in Connecticut.  This article analyzes Hooker’s letters, written primarily to his wife Isabella . . . to better understand Hooker’s experiences and thinking.  This article then addresses three points of contention regarding Hooker’s life.  First the article discusses Hooker’s unique style of adding footnotes with his own commentary to judicial opinions.  Second, this article argues that Hooker’s contributions to the In re Mary Hall decision [allowing her admission to the Connecticut Bar] may have been more significant than some of his modern critics contend.  Third, the article pushes back on criticism of Hooker’s obituary tributes [placed in the Connecticut Reports], particularly his obituary of Chief Justice Park, arguing that these were in keeping with the style of the time rather than indicative of jealousy.

For more on Mary Hall: this and this.

--Dan Ernst

Dehm on Émigré Lawyers in Australia

Sara Dehm, University of Technology Sydney Faculty of Law, has posted Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession, which also appears online in the Federal Law Review 49:3 (2021):

Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this article demonstrates the changing role and requirement of British subjecthood in the historical constitution and slow cultural transformation of the Australian legal profession. This article suggests that contemporary efforts to promoting cultural diversity in the Australian legal profession are enriched by paying attention to this long and difficult history of legal exclusions.
–Dan Ernst

Wednesday, June 2, 2021

Hoeflich and Davies Discus Holmes's "Black Book"

Michael H. Hoeflich and Ross E. Davies discuss their transcription of The Black Book of Justice Holmes
(Talbot Publishing, 2021) on YouTube.  As the press’s announcement states, the two “recount the story of its publication and its insights into Holmes’s intellectual development.”  Yes, Virginia, Holmes did read Mr. Herbert Spencer’s Social Statics (and just about everything else he wrote, plus Dashiell Hammett and much more).

--Dan Ernst

Gross on Hart, Fuller, and Germany

Oren Gross, University of Minnesota Law School, has posted What Both Hart and Fuller Got Wrong, which appears as 11 Wake Forest L. Rev. Online 54:

In the famous debate between H.L.A. Hart and Lon Fuller on the pages of the Harvard Law Review, Nazi law served as a litmus test against which each side measured how his, and the other’s, position stacked up. For Hart, law was law regardless of its possible immoral nature. However, if too evil, it could be disobeyed. For Fuller, morally repugnant laws were simply not laws at all. 
While disagreeing on this fundamental point, both Hart and Fuller shared, uncritically, a basic factual premise with respect to the legal situation that existed in the Weimar Republic and later on in the Third Reich. In “Positivism and Fidelity to Law” Fuller argued that “in the seventy-five years before the Nazi regime the positivistic philosophy had achieved in Germany a standing such as it enjoyed in no other country.” For his part, Hart accepts comments made by Gustav Radbruch including Radbruch’s statement that legal positivism has been virtually “unopposed by German lawyers for many decades” prior to the rise of National Socialism.

This article argues that while Hart’s and Fuller’s shared view of the legal experience in both the Weimar Republic and the Nazi state may not have impacted greatly their jurisprudential stances, it is significant to point out the historical distortions inherent in their understanding of the legal reality leading up to, and pertaining during, the Nazi regime. In fact, it is argued, while National Socialism employed its particular—perverted to be sure—vision of “natural law,” it was the opponents of that regime that argued from the perspective of legal positivism.
--Dan Ernst

Tuesday, June 1, 2021

LSA Awards to Daly, Mitra & Swanson

Several legal historians won awards at the Law and Society Association's virtual conference last week. 

The winner of the 2021 J. Willard Hurst Book Prize is Samuel Fury Childs Daly (Duke) for his book, A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020). This book is the first study of West African legal history to win the Hurst Prize (since 1980). Prof. Daly was our LHB guest blogger in April 2021.

The runner-up for the 2021 Hurst Prize is Durba Mitra (Harvard) for her book, Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought (Princeton University Press, 2020).

The winner of the John Hope Franklin Prize is Kara W. Swanson (Northeastern University) for her article, "Race and Selective Legal Memory: Reflections on Invention of a Slave," Columbia Law Review vol.120, no.4. 

Congratulations to all!

--Mitra Sharafi

Monday, May 31, 2021

McMurtry-Chubb, "Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy"

Rowman & Littlefield has published Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy (May 2021), by Teri A. McMurtry-Chubb (University of Illinois at Chicago). A description from the Press:

Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy is a re-imagining of the plantation not as Black and White, but in shades of White male identity. Through an examination of employment contracts between plantation owners and their overseers, and the web of public and private law that surrounded them, this book challenges notions of a monolithic White male identity in the antebellum South. It considers how race provided White men access to the land and enslaved labor that were foundational to the plantation economy, but how the wealthiest of those men used contracts, public law, and plantation management schemes to limit the access points by which overseers, the first managerial class in the United States, could achieve upward mobility as both White people and as men. In navigating the legal and social parameters of their employment contracts, overseers negotiated a white masculinity that formed their managerial identity. This managerial identity carried the imprint of white supremacy necessary to preserve inequities on the plantation, and perhaps in our modern workplaces as well.

A sample of advance praise:

Race Unequals is a nuanced and gripping portrayal of the world of white men who exercised power over enslaved people without legal ownership. Overseers at once stood in the shoes of the enslaver, brandishing the whip and chain, and themselves negotiated a subordinate position in white society, often in conflict with the planters who employed them. McMurtry-Chubb’s painstaking research in the records of contracts, litigation, and planters’ account books reveals the complexities of white masculinity in a world stratified by wealth as well as race, yet she also brings her subjects to life with an unerring eye for the telling detail and memorable story. — Ariela Gross

Meticulously researched and gracefully written, Race Unequals is an important chapter in the history of management. It moves tellingly from plantations, to legislatures, to courtrooms in the antebellum South. Vivid accounts of litigation—especially over planter regulation of overseers’ abuse of slaves and concerning what now would be called 'wage theft'—animate this intelligent examination of intraracial class conflicts among whites, their gendered dimensions, and their impacts on the lives of the enslaved.  — David Roediger

More information is available here.

-- Karen Tani

Saturday, May 29, 2021

Weekend Roundup

  • John Marshall (NYPL)
    The University of Illinois at Chicago changes the name of the John Marshall Law School Law to the UI-Chicago School of Law (Chicago Tribune).
  • This week, Balkinization is hosting a symposium on Kate Masur's Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).  Commentators are Laura Edwards (Princeton), Mark Graber (Maryland), Michael Les Bendict (Ohio State), Sanford Levinson (Texas), Gerard Magliocca (Indiana), William Novak (Michigan), Kunal Parker (Miami), and Allison Tirres (DePaul).
  • "Uncovering Racist Housing Practices, One Deed At A Time": Racially Restrictive Covenants in Durham, North Carolina (NC Public Radio).
  •  On June 9, 2021 Noon, EDT, the Supreme Court Historical Society hosts Marlene Trestman discussing “Bessie Margolin, Fair Labor Lawyer Before the Supreme Court.”  Trestman is the author of Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin.  Tickets are free to members and $25 for non-members.  Register.

  • ICYMI: Hugo Black’s Alexandria, VA, house to be renovated after court challenge (WaPo).

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

Friday, May 28, 2021

Kahn, "Divorce, American Style"

The University of Pennsylvania Press has published Divorce, American Style: Fighting for Women's Economic Citizenship in the Neoliberal Era (May 2021), by Suzanne Kahn (Roosevelt Institute). A description from the Press:

In the 1970s, the divorce rate in the United States doubled, and longtime homemakers suddenly found themselves at risk of poverty, not only because their husband's job was their sole source of income, but also because their insurance, retirement, and credit worthiness were all tied to their spouse's employment. Divorce, American Style examines how newly divorced women and policymakers responded to the crisis that rising divorce rates created for American society.

Suzanne Kahn shows that, ironically, rising divorce rates led to policies that actually strengthened the social insurance system's use of marriage to determine eligibility for benefits. Large numbers of newly divorced women quickly realized their invisibility within the American welfare state, which did not distribute benefits to most women directly but rather through their husbands. These newly divorced women organized themselves into a political force, and they were remarkably successful in securing legislation designed to address divorced women's needs. But this required significant compromise with policymakers, and these new laws specifically rewarded intact marriages, providing more robust benefits to women in longer marriages. These incentives remain in place today. Indeed, in the thirty years since this legislative compromise, activists' efforts to grapple with the legal system created out of this crisis have affected such high-profile debates as the fight over the Affordable Care Act and the battle for marriage equality.

Divorce, American Style contests the frequent claim that marriage has become a more flexible legal status over time. Enduring ideas about marriage and the family continue to have a powerful effect on the structure of a wide range of social programs in the United States.

More information is available here.

-- Karen Tani

 

Thursday, May 27, 2021

Likhovski on Max Laserson, "Borderland Jurist"

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted The Many Exiles of Max Laserson:

The life of the Jewish-Latvian-Russian-American legal scholar Max Laserson was punctuated by emigration and exile. This article explores the impact that this experience had on his scholarship. While Laserson’s audience and research topics changed as he moved from place to place, his origins as both a Jew and a native of Latvia, a borderland region between East and West, influenced his scholarship throughout his life. Wherever he lived, he became a "borderland jurist," an intermediary who transplanted foreign ideas to a local audience. 

--Dan Ernst

McQuade on terrorism and colonial law

 Joseph McQuade (University of Toronto) published A Genealogy of Terrorism: Colonial Law and the Origins of an Idea with Cambridge University Press in 2020. From the publisher: 

Using India as a case study, Joseph McQuade demonstrates how the modern concept of terrorism was shaped by colonial emergency laws dating back into the nineteenth and early twentieth centuries. Beginning with the 'thugs', 'pirates', and 'fanatics' of the nineteenth century, McQuade traces the emerging and novel legal category of 'the terrorist' in early twentieth-century colonial law, ending with an examination of the first international law to target global terrorism in the 1930s. Drawing on a wide range of archival research and a detailed empirical study of evolving emergency laws in British India, he argues that the idea of terrorism emerged as a deliberate strategy by officials seeking to depoliticize the actions of anti-colonial revolutionaries, and that many of the ideas embedded in this colonial legislation continue to shape contemporary understandings of terrorism today.

Praise for the book:

"A brilliant deconstruction of the colonial prose of counter-terrorism and its post-colonial legacy, McQuade's book provides new insights into how legal states of exception were crafted to delegitimize revolutionary violence. A must read for anyone wishing to understand the true nature of British ‘rule of law' in India and its global ramifications." - Sugata Bose

"The declaration of a global war on terrorism in 2001 did not come out of the clear blue sky. Instead, as Joseph McQuade demonstrates in this brilliantly conceived and researched genealogy, some of its most forgotten roots lie in Britain's colonial administration in India and its diplomatic efforts on the world stage. An essential contribution to imperial and international legal history." - Samuel Moyn

Further information is available here.

--Mitra Sharafi

Wednesday, May 26, 2021

Kent on Qualified Immunity and 19th-Century Federal Officers

Andrew Kent, Fordham University School of Law, has posted Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers, which appears in Notre Dame Law Review  96 (2021): 1755-1788:

This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially-created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to the institution which should weigh the costs and benefits of allowing constitutional tort suits against federal officers for damages, especially in areas like national security or foreign affairs in which the political branches might be thought to have constitutional primacy. Scholarly writing and litigation briefs critical of the Court’s treatment of Bivens now frequently focus on damages suits under common law or general law against American government officers in the early republic, reading them as giving Bivens a quasi-originalist pedigree. This historical writing about officer damages suits claims that courts in the early republic: acted independently of Congress to impose significant restraints on federal officers; protected persons from federal overreach no matter their citizenship and territorial location, and even during wartime; and refused to grant anything like qualified immunity that might have softened the blow of strict personal liability and promoted government efficiency. Common law damages suits against federal officers are said to have remained routinely available until after Bivens was decided when, in the 1988 Westfall Act, Congress barred state-law tort suits against federal officers acting within the scope of their employment.

Through case studies of litigation against federal officers involved in customs enforcement and maritime seizures, this Essay qualifies and revises these claims. In those two contexts, I show that there was substantial political branch endorsement of personal damages liability of federal officers in the early republic, but as material and legal conditions changed over the nineteenth century, Congress moved away from officer suits as a means of ensuring accountability of federal officers and compensation of persons harmed by official illegality. Further, in high stakes contexts for the young republic—wartime prize seizures and peacetime anti-piracy seizures—the Supreme Court did in fact apply immunity doctrines to protect officers and incentivize vigor. Finally, alien enemy disability to sue in U.S. courts during wartime must be acknowledged as a significant limit the protective reach of the officer damages suit. I conclude with thoughts about the implications of this somewhat revised view of the history of damages litigation against federal officers.
--Dan Ernst

Lew-Williams, "Paper Lives of Chinese Migrants and the History of the Undocumented"

Modern American History has published an article that looks to be of interest to LHB readers: "Paper Lives of Chinese Migrants and the History of the Undocumented," by Beth Lew-Williams (Princeton University). Here's the abstract:

Historians know a great deal more about the laws and policies that first created unauthorized status than the people who had to live within these constraints. What if we tell the history of the undocumented as a history of a people, rather than a history of a state-constructed category? Scholars have noted that unauthorized status exerts broad effects on the conditions of migrants’ everyday lives, but they have focused primarily on Latinx migrants in the late twentieth and early twenty-first centuries. The case of unauthorized migrants produced by the Chinese exclusion laws (1882–1943) demonstrates how the study of the undocumented must begin a century earlier. In order to denaturalize the conditions of the present, we must interrogate the shifting nature of undocumented life in the past.
Read on here.

-- Karen Tani

Tuesday, May 25, 2021

Banner's "Decline of Natural Law"

Stuart Banner, UCLA Law, has recently published The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (Oxford University Press), “an account of a fundamental change in American legal thought, from a conception of law as something found in nature to one in which law is entirely a human creation.”

Before the late 19th century, natural law played an important role in the American legal system. Lawyers routinely used it in their arguments and judges often relied upon it in their opinions. Today, by contrast, natural law plays virtually no role in the legal system. When natural law was part of a lawyer's toolkit, lawyers thought of judges as finders of the law, but when natural law dropped out of the legal system, lawyers began thinking of judges as makers of the law instead.

In The Decline of Natural Law, the eminent legal historian Stuart Banner explores the causes and consequences of this change. To do this, Banner discusses the ways in which lawyers used natural law and why the concept seemed reasonable to them. He further examines several long-term trends in legal thought that weakened the position of natural law, including the use of written constitutions, the gradual separation of the spheres of law and religion, the rapid growth of legal publishing, and the position of natural law in some of the 19th century's most contested legal issues. And finally, he describes both the profession's rejection of natural law in the late 19th and early 20th centuries and the ways in which the legal system responded to the absence of natural law.

The first book to explain how natural law once worked in the American legal system, The Decline of Natural Law offers a unique look into how and why this major shift in legal thought happened, and focuses, in particular, on the shift from the idea that law is something we find to something we make.
--Dan Ernst

Blackhawk, Rosenblum to NYU Law

The New York University School of Law has announced the hiring of four new faculty members. Among them are Maggie Blackhawk (currently at the University of Pennsylvania Carey School of Law) and Noah Rosenblum (currently a Golieb Fellow at NYU Law). From the announcement:

Maggie Blackhawk comes to NYU Law from the University of Pennsylvania, where she started as an assistant professor of law in 2017 and was recently voted tenure. Her teaching and scholarship focus on legislation, constitutional law, and federal Indian law. Blackhawk is the author of pathbreaking scholarship on the Petition Clause, equity outside the courts, and the place of federal Indian law in U.S. public law. Previously, she was a Climenko Fellow and Lecturer on Law at Harvard Law School. Blackhawk earned her law degree from Stanford Law School, where she served as a senior managing & articles editor of the Stanford Journal of Civil Rights & Civil Liberties. After graduating, she worked in private practice and clerked for Judge Susan Graber of the US Court of Appeals for the Ninth Circuit and Chief Judge James Ware of the US District Court for the Northern District of California.    

. . .

Noah Rosenblum earned his law degree from Yale Law School, where he served as articles editor of the Yale Law Journal and received the Joseph Parker Prize in Legal History. He is slated to earn his PhD in history from Columbia University this year. After graduating from law school, he clerked for Judge Jenny Rivera ’85 of the New York Court of Appeals and then for Judge Guido Calabresi of the US Court of Appeals for the Second Circuit. Rosenblum has most recently been a Samuel I. Golieb Fellow in Legal History at NYU Law. His teaching and scholarship interests are in legal history, administrative law, constitutional law, and legal ethics and professional responsibility.

Congratulations to Professors Blackhawk and Rosenblum, and congratulations to NYU Law!

-- Karen Tani

Daly on making the state of Biafra

Our April guest blogger, Samuel Fury Childs Daly (Duke) published the following article in 2020: "A nation on paper: Making a state in the Republic of Biafra," Comparative Studies in Society and History 62:4, 868-94. Here's the abstract: 

What role did law play in articulating sovereignty and citizenship in postcolonial Africa? Using legal records from the secessionist Republic of Biafra, this article analyzes the relationship between law and national identity in an extreme context—that of the Nigerian Civil War (1967–1970). Ideas about order, discipline, and legal process were at the heart of Biafra's sense of itself as a nation, and they served as the rhetorical justification for its secession from Nigeria. But they were not only rhetoric. In the turmoil of the ensuing civil war, Biafra's courts became the center of its national culture, and law became its most important administrative implement. In court, Biafrans argued over what behaviors were permissible in wartime, and judges used law to draw the boundaries of the new country's national identity. That law played this role in Biafra shows something broader about African politics: law, bureaucracy, and paperwork meant more to state-making than declensionist views of postcolonial Africa usually allow. Biafra failed as a political project, but it has important implications for the study of law in postcolonial Africa, and for the nation-state form in general.

Further information is available here.

--Mitra Sharafi 

Monday, May 24, 2021

Plessy v. Ferguson at 125

Kenneth Mack on what the decision meant and why it still matters, in Harvard Law Today.

Essays on Lawyers and International Politics

Here’s a collection of essays we might have missed: Crafting the International Order: Practitioners and Practices of International Law since c.1800, edited by Marcus M. Payk and Kim Christian Priemel (Oxford University Press):

This volume sheds light on how lawyers have made sense of, engaged in, and shaped international politics over the past three hundred years. Chapters show how politicians and administrators, diplomats and military men, have considered their tasks in legal terms, and how the field of international relations has been filled with the distinctly legal vocabulary of laws, regulations, treaties, agreements, and conventions.

Leading experts in the field provide insights into what it means when concrete decisions are taken, negotiations led, or controversies articulated and resolved by legal professionals. They also inquire into how the often-criticised gaps between juristic standards and everyday realities can be explained by looking at the very medium of law. Rather than sorting people and problems into binary categories such as "law" and "politics" or "theory" and "practice," the case studies in this volume reflect on these dichotomies and dissolve them into the messy realities of conflicts and interactions which take place in historically contingent situations, and in which international lawyers assume varying personas.
TOC after the jump. 

–Dan Ernst

Milligan on Federally Subsidized Racial Discrimination

Joy Milligan, University of California, Berkeley, School of Law, although on her way to the University of Virginia School of Law, has posted Remembering: The Constitution and Federally Funded Apartheid, which is forthcoming in the University of Chicago Law Review:

For much of the twentieth century, the U.S. government authorized and invested heavily in segregation and racial inequality. Often it did so through federal programs authorized under Congress’ Spending Clause powers, which allowed powerful national investments in areas like health, education, and housing, but frequently created segregated hospitals, schools, and communities. From the New Deal forward, Black leaders pressed constitutional arguments to hold the federal government responsible for its role in deepening racial inequality. Within the federal government, lawyers and administrators recognized the strength of those arguments but decided against halting federal involvement in Jim Crow.

Decades later, the civil rights advocates finally prevailed. By the 1970s, it was black-letter law that the Fifth Amendment’s equal protection component barred federal subsidies or support for racial discrimination. The same “no-aid” principle was codified in the landmark Civil Rights Act of 1964. However, from the 1980s onward the hard-won constitutional mandate became increasingly difficult to enforce, blocked by judicially-constructed procedural obstacles. The substantive Fifth Amendment ideal receded, due to increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle.

This Article reveals that forgotten history, breaking the constitutional silence that has fallen over the Fifth Amendment. I argue that the Fifth Amendment norm, and the underlying reality of long-term federal participation in racial apartheid, should no longer be ignored. The costs of doing so are significant: civil rights frameworks have been distorted, leaving no systemic check or means of redress for the discriminatory use of federal funds. Further, the nation’s constitutional memory and deliberations have been shortchanged. Even if the judiciary remains unwilling to enforce the no-aid principle, other actors should revive it. Our polity should again debate federal constitutional responsibility for Spending Clause programs, and, in doing so, confront the nation’s obligation to repair the apartheid it once bankrolled.
–Dan Ernst