Wednesday, June 19, 2024

Hamilton, "A Widow's Vengeance after the Wars of Religion"

A belated notice that Oxford University Press has published A Widow's Vengeance after the Wars of Religion (2023), by Tom Hamilton (Durham University). A description from the Press:

Paris, 1599. At the end of the French Wars of Religion, the widow Renée Chevalier instigated the prosecution of the military captain Mathurin Delacanche, who had committed multiple acts of rape, homicide, and theft against the villagers who lived around her château near the cathedral city of Sens. But how could Chevalier win her case when King Henri IV's Edict of Nantes ordered that the recent troubles should be forgotten as 'things that had never been'?

A Widow's Vengeance after the Wars of Religion is a dramatic account of the impact of the troubles on daily life. Based on neglected archival sources and an exceptional criminal trial, it recovers the experiences of women, peasants, and foot soldiers, who are marginalized in most historical studies.

Tom Hamilton shows how this trial contributed to a wider struggle for justice and an end to violence in postwar France. People throughout the society of the Old Regime did not consider rape and pillage as inevitable consequences of war, and denounced soldiers' illicit violence when they were given the chance. As a result, the early modern laws of war need to be understood not only as the idealistic invention of great legal thinkers, but also as a practical framework that enabled magistrates to do justice for plaintiffs and witnesses, like Chevalier and the villagers who lived under her protection.

More information is available here. An interview with the author is available here, at New Books Network.

-- Karen Tani

Tuesday, June 18, 2024

European and Latin American Experiences from a Legal Historical Perspective

An initial volume of Law and Diversity: European and Latin American Experiences from a Legal Historical Perspective (2023), edited by Peter Collin and Agustin Casagrande and devoted to "Fundamental Questions" has been published open access in the Global Perspectives on Legal History series of the Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie:

The principle of equality is one of the cornerstones of modern legal systems. Modern law is based on equality, and therefore assumed to stand in sharp contrast to the law of pre-modern, estates-based societies characterised by special legal regimes for particular groups or individuals. However, it is worth asking if this dichotomy can perhaps only be maintained if one looks solely at the fundamental postulates and the major codifications with their equality-orientated system formations. ‘Modernity’, too, is highly socially differentiated and continues or transforms ‘pre-modern’ distinctions to a not inconsiderable extent. All of this is often reflected in special rules created by the state or by the groups themselves – even if, in the latter case, they are often not recognised as law.

In this volume, the term ‘diversity’ denotes constellations of social difference that are relevant to normativity. This understanding of diversity only partially overlaps with the categories of postmodern diversity discourses. Rather, this volume’s central questions ask what social differences are relevant to normativity, to what extent and in what respect. Or, to relate it more specifically to the relationship between law and diversity: which social differences also make a difference to the law?

A comparative look at European and non-European developments provides a broader perspective on these issues. In this context, Latin America is a particularly fruitful field of investigation. On the one hand, a translation of European legal traditions already took place during the colonial period and, after independence, Latin American states striving for modernity often took recourse to European legal ideas and regulatory models. On the other hand, the legacy of the colonial past continued to have a formative influence, and the social differentiation to which the law had to respond was largely different from that in European societies.

To ensure that bringing together European and Latin American perspectives did not result in a series of mere juxtapositions, the contributions on the development of a specific national legal system are accompanied by comments written by experts on other national legal systems. These comments, firstly, outline the comparative development in a different state and, secondly, highlight differences and similarities. European and Latin American authors alternate. The period under discussion is the last 200 years.  

In volume 1, the authors deal with fundamental questions of law and diversity. Further volumes on public law, private law and criminal law will follow.

--Dan Ernst

Monday, June 17, 2024

Vanatta, "Plastic Capitalism: Banks, Credit Cards, and the End of Financial Control"

Yale University Press has published Plastic Capitalism: Banks, Credit Cards, and the End of Financial Control (2024), by Sean Vanatta (University of Glasgow). A description from the Press:

American households are awash in expensive credit card debt. But where did all this debt come from? In this history of the rise of postwar American finance, Sean H. Vanatta shows how bankers created our credit card economy and, with it, the indebted nation we know today.

America’s consumer debt machine was not inevitable. In the years after World War II, state and federal regulations ensured that many Americans enjoyed safe banks and inexpensive credit. Bankers, though, grew restless amid restrictive rules that made profits scarce. They experimented with new services and new technologies. They settled on credit cards, and in the 1960s mailed out reams of high-interest plastic to build a debt industry from scratch.

In the 1960s and ’70s consumers fought back, using federal and state policy to make credit cards safer and more affordable. But bankers found ways to work around local rules. Beginning in 1980, Citibank and its peers relocated their card plans to South Dakota and Delaware, states with the weakest consumer regulations, creating “on-shore” financial havens and drawing consumers into an exploitative credit economy over which they had little control. We live in the world these bankers made.

An additional author note for readers of this blog: "Plastic Capitalism is fundamentally a history of how stakeholders used law—and especially state law—to structure consumer financial markets through the post-World War II era. It also shows how American bankers, through financial innovation and clever lawyering (including a cameo by Robert Bork), broke down the system of regulatory federalism that had restrained finance since the New Deal."

From the reviewers:

“Sean Vanatta’s remarkable Plastic Capitalism is the finest account we have yet of the rise of the now-ubiquitous credit card and the steady expansion of its role in American capitalism and in our own financial lives. In a narrative history that draws on deep archival research, Vanatta shows clearly how our financial technologies and economic world are built by law and politics, instead of emerging through consumer desire.”—Kimberly Phillips-Fein

“Vanatta illuminates the complex tapestry that is the US financial system by following one important thread—the history of the credit card industry. In this way he provides a novel and compelling account of how bankers made use of our divided federal system of government to break free of the constraints imposed on them by New Deal regulation. The mountains of credit card debt under which American households have come to labor was the unhappy result.”—Naomi Lamoreaux

More information is available here.

-- Karen Tani

Saturday, June 15, 2024

Weekend Roundup

  • Wisconsin Lawyer continues its series Women History Makers with a profile of Jo Deen Lowe, chief judge of the Ho-Chunk Nation Trial Court.
  • ICYMI: A Brief History of the Phrase No One is above the Law" (NYT).  Magna Carta: The Atlantic Crossing (History Today). New research shows how white women profited from slavery, too (The Conversation).

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

Friday, June 14, 2024

Rothschild, "The Origins of the Major Questions Doctrine"

Rachel Rothschild (University of Michigan Law) has posted "The Origins of the Major Questions Doctrine." The abstract:

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first, paradigmatic example of this line of cases is the 1980 “benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the toxic chemical benzene.

This paper argues that we cannot make sense of contemporary debates about the major questions doctrine without a deep understanding of the doctrine’s supposed origins in the benzene case. It relies on hundreds of archival documents and a dozen oral histories collected over several years to provide a historical study of the decision and its aftermath. No other legal scholars or historians have analyzed these materials, which the author amassed from Freedom of Information Act requests as well as visits to government and university archives. They include internal agency documents, court records, and the personal papers of multiple Supreme Court Justices involved in the benzene decision.

Based on this novel set of materials and interviews, the article shows that the Justices’ misunderstanding of OSHA’s scientific evidence and fears of overregulation led them to demand that the agency use a specific analytical method to demonstrate benzene’s harms in order to avoid a constitutional delegation problem. Yet OSHA had decided not to utilize the method – now called quantitative risk assessment – because of insufficient data. The court instead deferred to industry-funded experts with little or no background in environmental and public health research, who argued that the method could be used and would reveal that the rule saved very few lives. The Justices’ embrace of quantitative risk assessment contradicted Congress’s clear desire to avoid industry influence over public health research when passing the OSH Act as well as judicial precedent on deferring to agencies working at the frontiers of scientific knowledge.

Rather than upholding separation of powers principles or agency adherence to the text of its authorizing statute, the Supreme Court’s benzene decision is best characterized as a judicial power grab at the expense of both agency expertise and the democratically elected branches of government. The paper concludes by showing how the Supreme Court’s missteps in the benzene case – exaggeration of economic costs, ignoring statutory constraints on agency discretion, and deferring to unqualified experts – have continued to plague the Supreme Court’s “major questions” decisions, and provides suggestions for how the courts and agencies can avoid these problems.

The full paper is available here.

-- Karen Tani


Thursday, June 13, 2024

Russell on Models of Dispute Resolution and Street Railway Claims

Thomas D. Russell, University of Denver, Sturm College of Law, as posted Claims on the Tracks:

A Trip Down Market Street, 2016 (Upchurch)
Using original empirical evidence, this Article challenges the prevailing conception of a “dispute pyramid”—a smooth process of attrition from personal injury through claiming to litigation. Instead, I argue for the metaphor of a “salmon run,” with huge drop-offs from the levels of injuries to claims and, especially, to litigation.

As support for the proposed model, the Article analyzes the claims department records of Alameda County’s principal street railway company during the early twentieth century. Using data drawn from archival records of the street railway company’s attorney, Harmon Bell, the Article examines the operation of the street railway’s claims department in detail. This never-before-assembled data reveals the hidden operation of the systems of claims compensation within an industry that injured approximately one in 331 urban Americans in 1907. For a sense of the street scene, see this video of San Francisco in April 1906.

The assembled data include all the personal injury suits filed in Alameda County’s Superior Court, all appellate cases involving the street railway company, and other sources concerning the street railway industry. In particular, the Article describes the relationship between the amount paid through the claims department and the amount paid in Superior Court judgments and costs. The average payments that successful claimants received were tiny, averaging just $127.32 in the claims department.

This Article presents a series of research and methodological critiques. No scholar has assembled a universe of data linking business operations, injuries, and claims to litigation and appeals. Empirical researchers who seek to understand compensation systems should collect data on the operation of claims departments. Today, such studies must include insurance claims departments. If I could find these data from more than a century ago, researchers today could do likewise.  Second, the common idea that injured claimants bargain in the shadow of the law is naïve. The claims department casts its own, longer shadow than the trial court.  The final critique focuses on anyone who relies upon reported appellate cases as representations of any realm below. Appellate cases, especially those in casebooks, misrepresent the trial court and, more dramatically, misrepresent the empirical world of the claims department and business operation.

--Dan Ernst

Tuesday, June 11, 2024

Sanctis de Brito's "Seeking Capture, Resisting Slavery"

A new book is out, open access, in the Global Perspectives on Legal History series of the Max-Planck-Institut for Legal History and Legal Theory: Adriane Sanctis de Brito's Seeking Capture, Resisting Seizure: An International Legal History of the Anglo-Brazilian Treaty for the Suppression of the Slave Trade (1826–1845):

The treaties to suppress the slave trade were the subject of intense legal battles and debates in the first half of the 19th century. By delving into the legal disputes that took place within the context of the Anglo-Brazilian treaty, this book highlights the political importance of what might at first glance be perceived as little more than argumentative hurdles over the rules and proceedings regarding the search and capture of ships. Some of these legal battles were carried out in the correspondence between the Foreign Offices, sometimes between diplomatic representatives or within mixed commissions, while still others involved the process of interpretation and the resignification that took place over the course of years and involved a multiplicity of exchanges between various actors and institutions.

Britain constantly pushed to expand the legal use of force and possibilities of capture within the spaces outlined by the treaty regime. Brazil actively engaged in the legal interpretation, and in so doing created an argumentative onus that would later continue to transform British legal approaches and the very expectations about the content of the law the two parties were applying.

By constantly challenging the scope and limits of the treaty, Brazilian representatives slowed down the process of abolishing the slave trade, thus preserving the perverse practice, while at the same time protecting Brazil’s independence against the expansion of British interference. Whether reading the bilateral treaty clauses as analogous to or differently from prize law or general international law, the day-to-day interpretation forged anti-slave trade rules that kept ships, instead on enslaved people, protagonists of slave trade suppression mechanisms.

This history of the Anglo-Brazilian treaty provides more detail about the mechanisms created by international law to combat the slave trade. It also reveals the complex legal translations of state inequality, humanitarianism, violence, and the fine line between war and peace.

--Dan Ernst

CSCHS Review (Spring/Summer 2024)

[The Spring/Summer '24 issue of the California Supreme Court Historical Society Review is now available.  Here is the editor's description of its contents.  DRE]

The upcoming presidential election and ongoing debate over who is entitled to vote and how votes should  be counted make this an appropriate time to look back at how Californians expanded the franchise since the early days of statehood. In our lead story, the first of two parts, a team of UCLA researchers explores how California systematically discriminated during its first hundred years against different groups of prospective voters, employing some of the same tools used under the Jim Crow regime of the South. Part II, which will run in our Fall / Winter ’24 issue, will focus on the post-World War II decades when the pendulum began to swing the other way and state law evolved to make voting easier and broaden voting rights, while maintaining the integrity of voting systems.

Next, Mitchell Keiter looks back at the Robins v. Pruneyard Shopping Center litigation and whether private property owners — there, a shopping mall owner — could evict high school students who were peacefully gathering signatures for a petition opposing both a U.N. resolution against Zionism and Syria’s emigration restrictions. Keiter, an appellate attorney and member of the Society’s Board of Directors, analyzes the California and U.S. Supreme Courts’ decisions in this case against historical tradition and earlier litigation between speakers who wish to express ideas and property owners who wish not to host that expression. The question lies at the core of two cases currently before the U.S. Supreme Court concerning the constitutionality of Florida and Texas laws requiring viewpoint-neutral access to privately owned social media platforms.

Elsewhere in this issue, Society Board member John Caragozian traces how litigation about California’s remote Mineral King Valley changed the U.S. environmental movement by opening the door to claims by citizen groups and individuals challenging proposed land use and development. Also, UC College of the Law, San Francisco Professor Mark Aaronson reviews Jeffrey Rosen’s The Pursuit of Happiness. The new book looks at the founding generation’s philosophical understanding of that phrase from the Declaration of Independence, which also appears in many state constitutions, including California’s. In his thoughtful essay, Aaronson sees helpful insights in Rosen’s book for thinking about a revitalized conception of happiness as a source of constitutional protections and aspirations going forward.

Monday, June 10, 2024

Klass on the History of the Interpretation-Construction Distinction

My Georgetown Law colleague Gregory Klass has posted A Short History of the Interpretation-Construction Distinction:

Francis Lieber (NYPL)
This document collects for ease of access and citation three of my posts on the New Private Law Blog, which chart the conceptual history of the interpretation-construction distinction. The posts begin with Francis Lieber’s 1939 introduction of the concepts, then describes Samual Williston’s 1920 account of the distinction in the first edition of Williston on Contracts, and concludes with Arthur Linton Corbin’s 1951 reconceptualization in the first edition of Corbin on Contracts. The posts identify two different conceptions of the distinction. Under the first (Lieber and Williston), construction supplements interpretation. Under the second (Corbin), the two activities complement one another. The complementary conception is the better one.
--Dan Ernst

Hartog's "Nobody's Boy and His Pals"

Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Emeritus, at Princeton University, has published Nobody’s Boy and His Pals: The Story of Jack Robbins and the Boys’ Brotherhood Republic (University of Chicago Press):

In 1914, social reformer Jack Robbins and a group of adolescent boys in Chicago founded the Boys’ Brotherhood Republic, an unconventional and unusual institution. During a moral panic about delinquent boys, Robbins did not seek to rehabilitate and/or punish wayward youths. Instead, the boys governed themselves, democratically and with compassion for one another, and lived by their mantra “So long as there are boys in trouble, we too are in trouble.” For nearly thirty years, Robbins was their “supervisor,” and the will he drafted in the late 1950s suggests that he continued to care about forgotten boys, even as the political and legal contexts that shaped children’s lives changed dramatically.
Nobody’s Boy and His Pals is a lively investigation that challenges our ideas about the history of American childhood and the law. Scouring the archives for traces of the elusive Jack Robbins, Hendrik Hartog examines the legal histories of Progressive reform, childhood, criminality, repression, and free speech. The curiosity of Robbins’s story is compounded by the legal challenges to his will, which wound up establishing the extent to which last wishes must conform to dominant social values. Filled with persistent mysteries and surprising connections, Nobody’s Boy and His Pals illuminates themes of childhood and adolescence, race and ethnicity, sexuality, wealth and poverty, and civil liberties, across the American Century. 

Encomia from Barbara Y. Welke, Martha Minow, and David Sugarman are here.

--Dan Ernst

Saturday, June 8, 2024

Weekend Roundup

  • Natasha Wheatley, Princeton University, discusses her book, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton, 2023) on the Talking Legal History podcast with Siobhan M. M. Barco.

  • LHB Co-Blogger Karen Tani was part of a stellar lineup at a plenary session of this weekend's
    American Political History Conference, entitled "The Courts and American Democracy." The other panelists were Julian Mortenson, and Gautham RaoRachel Shelden moderated.  DRE
  • Another book event for Alison LaCroix's Interbellum Constitution: On June 17, Professor LaCroix is on the program of a Town Hall of the National Constitution Center with William B. Allen, a political theorist who was edited and translated Montesquieu’s The Spirit of the Laws.  Register here.  
  • Dylan C. Penningroth will discuss Before the Movement: The Hidden History of Black Civil Rights on Tuesday, June 18, 2024, at 6 p.m. at the City of West Hollywood’s Council Chambers/Public Meeting Room located at 625 N. San Vicente Boulevard. The event is free and open to the public. Reservations are requested, here.
  • The Historical Society of the New York Courts and the Supreme Court, New York County Civil Branch, are sponsoring a hybrid event, NY County Courthouse WPA Murals: Who Created Them and What Do They Represent? at the New York County Courthouse Rotunda at 60 Centre Street, NYC, Tuesday, June 25, 2024, from 1:00 - 2:30 PM.  The speakers are Greta Berman, emerita The Julliard School, and Helen A. Harrison, the former director of the Pollock-Krasner House and Study Center, Stony Brook Foundation.  Jon Ritter, Clinical Professor of Art History, New York University, will moderate.
  • Dueling books on American constitutionalism at the NCC's next Town Hall, on June 12, btw: Center: Yuval Levin’s American Covenant: How the Constitution Unified Our Nation—and Could Again and Aziz Rana’s The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them.  Jeffrey Rosen moderates.  Register here.
  • The Organization of American Historians has announced  two new awards: the Award for Contributions to Public Policy, and the Joseph L. Peyser Prize for New France History.  "The Award for Contributions to Public Policy will annually recognize a scholar of any discipline who has made a significant contribution to U.S. public policy through historical research. The award is made possible through the generosity of J. Morgan Kousser, Professor of History and Social Science Emeritus at California Institute of Technology." 
  • The intellectual historian and author of a great book on the history of social science, Dorothy Ross, has died.  Here is Johns Hopkins's notice. 
  • On the ABAJ's Modern Law Library podcast: Madiba K. Dennie discusses her book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.
  • ICYMI:  Why Americans Have a Right to Trial by Jury (History).  A historical marker for Sully Jaymes, the first Black lawyer in Springfield, Ohio (Springfield News-Sun).

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

Friday, June 7, 2024

CFP: Law, colonialism and gender in the Muslim world

[Via H-Law, we have the following CFP.  DRE]

Law, colonialism and gender in the Muslim world

This conference aims to bring together scholars working on the legal history of the Muslim world who focus on the colonial period and are interested in ‘gender-coded law’ (i.e. all legal domains that automatically invoke connotations of gender).

Several scholars have implied that imperialism did not affect gender relations in the Muslim world, since family law remained relatively untouched by the colonial powers (Anderson, Buskens, Peters). There are, however, several examples in colonial legal history that point to the influence of imperial powers on gender relations through law. The interdiction of homosexuality in British India (Radics) and the ban on interreligious marriage in the Dutch East-Indies (De Hart) are only two examples of the imperial footprint on gender laws. Moreover, nineteenth-century Western imperialism affected the thinking about gender in the Muslim world (Massad, Cuno, Khouloussy, Surkis). This suggests that contemporary gender-coded laws in Muslim-majority countries cannot be understood without studying the legislation issued by the imperial powers.

Academics who work in the field of legal history, gender history and/or social history (or a combination of these) are invited to share their research on the laws that were introduced in the Muslim territories during French, Dutch, British, Russian, or other colonial rule that touch upon gender. Proposals may concern various periods and topics, ranging from property law and land tenure to criminal law and family law.

The conference will be held at the University of Amsterdam on December 19 and 20, 2024. It will be a small (max. 15 participants) research seminar/workshop. Applications for participation, including 250-word abstracts and a 100-word brief biography should be sent to by July 1, 2024. If selected, the conference organization provides for travel and accommodation. The conference will be held at the historical building of the Allard Pierson Museum in the city centre of Amsterdam, which is close to Central Station.

Suggested paper topics include, but are not limited to:

  • The participation of colonial bureaucrats and local (religious) elites to the formation of colonial gender-coded law
  • Debates on gender-coded law in the press and other sources such as colonial law magazines
  • The circulation of law between the ‘homeland’ and the colonies as between various colonies and empires
  • Crosspollination and circulation of ideas about law and gender within the Muslim world during the Age of Empire/Nahda period

Contact Information: dr. Maaike Voorhoeve, Amsterdam School of Historical Studies, University of Amsterdam, the Netherlands

Hunt on Taxation in the Irish Free State

Emer Hunt, Sutherland School of Law, University College Dublin, has posted Transition without Change: Taxation by the Irish Free State, which is to appear in volume 11 of Studies in the History of Tax Law, edited by Peter Harris and Dominic de Cogan (Hart Publishing):

The Irish Free State, established in 1922, saw an effective continuation of the tax laws in force during the previous colonial period. This was quite marked, both in the continuity of legislation and tax administration and, indeed, was viewed as positive by some revolutionary politicians of the era. The degree of continuity-or stasis-could be a reflection of the nationalist focus on the identity of the ruler rather than the content of the rules, an answer to the economic imperative of raising revenue for the new state or a desire to impress the erstwhile rulers with the conservatism of the new regime. This chapter examines the formation of the modern Irish state in 1922 within the microcosm of tax laws and against the backdrop of a desire for self-determination which was not expressed through tax law and policies.
--Dan Ernst

Thursday, June 6, 2024

McMahon's "Supreme Court Unlike Any Other"

Kevin J. McMahon, Trinity College, has published A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People (University of Chicago Press):

Today’s Supreme Court is unlike any other in American history. This is not just because of its jurisprudence but also because the current Court has a tenuous relationship with the democratic processes that help establish its authority. Historically, this “democracy gap” was not nearly as severe as it is today. Simply put, past Supreme Courts were constructed in a fashion far more in line with the promise of democracy—that the people decide and the majority rules.

Drawing on historical and contemporary data alongside a deep knowledge of court battles during presidencies ranging from FDR to Donald Trump, Kevin J. McMahon charts the developments that brought us here. McMahon offers insight into the altered politics of nominating and confirming justices, the shifting pool of Supreme Court hopefuls, and the increased salience of the Court in elections. A Supreme Court Unlike Any Other is an eye-opening account of today’s Court within the context of US history and the broader structure of contemporary politics.

--Dan Ernst

Wednesday, June 5, 2024

Job Alert: Teaching Fellow in Legal History at Edinburgh Law School

The Edinburgh Law School is advertising for "a Teaching Fellow in Legal History on a fixed term basis 1 October 2024 to 30 April 2026.  . . . The successful candidate should have completed a PhD (or be close to completion) in a relevant discipline, or have equivalent practical experience."  More.

--Dan Ernst

Kent on Executive Power and the Founders' Presidency

Andrew Kent, Fordham University School of Law, has posted Executive Power, the Royal Prerogative, and the Founders' Presidency:

George Washington, Under Construction (NYPL)
The original meaning of the opening clause of Article II of the Constitution--which vests "[t]he executive power ... in a President of the United States"--has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered "executive" in nature in the eighteenth century, defined by reference to the royal prerogative powers of the British monarchy. Other scholarship views the Clause as granting only the power to execute the law. A third approach interprets the Clause even more minimally, as a mere designation provision, not granting power at all but making clear that there would be a singular chief magistrate called the president, with power flowing from enumerations such as the Commander in Chief, Appointments, Pardons, and Treaty Clauses. This Article comprehensively reviews the British and American legal, political, and ideological backgrounds relevant to understanding the Executive Power Clause; carefully reads the text in light of interpretive conventions used in the founding era and extrinsic evidence from the Philadelphia Convention and state ratification debates; and critically evaluates the current scholarship. The wide divergence among modern scholars about the meaning of the Executive Power Clause is found to reflect real ambiguity in the text of the Constitution and the historical records. Unlike many previous scholars, who have settled on their preferred reading as the clearly correct choice, I find that there are several plausible original public meanings of the Executive Power Clause. When the new government under the Constitution became operational in 1789, the ambiguous Clause was sitting there ready to become a site of contestation. That said, the text and history I review here support at least one firm conclusion: by far the least plausible original meaning of the Executive Power Clause is the one which sees it as granting an undefined amount of British royal prerogative power to the president.
--Dan Ernst

Tuesday, June 4, 2024

LaCroix's "Interbellum Constitution"

Alison L. LaCroix, University of Chicago Law School, has published The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms in the Yale Law Library Series in Legal History and Reference at the Yale University Press:

Between 1815 and 1861, American constitutional law and politics underwent a profound transformation. These decades of the Interbellum Constitution were a foundational period of both constitutional crisis and creativity.
The Interbellum Constitution was a set of widely shared legal and political principles, combined with a thoroughgoing commitment to investing those principles with meaning through debate. Each of these shared principles—commerce, concurrent power, and jurisdictional multiplicity—concerned what we now call “federalism,” meaning that they pertain to the relationships among multiple levels of government with varying degrees of autonomy. Alison L. LaCroix argues, however, that there existed many more federalisms in the early nineteenth century than today’s constitutional debates admit.
As LaCroix shows, this was a period of intense rethinking of the very basis of the U.S. national model—a problem debated everywhere, from newspapers and statehouses to local pubs and pulpits, ultimately leading both to civil war and to a new, more unified constitutional vision. This book is the first that synthesizes the legal, political, and social history of the early nineteenth century to show how deeply these constitutional questions dominated the discourse of the time.
Here are some endorsements:

The Interbellum Constitution reminds us of the important insights that have helped transform the historiography of the early American Republic, of slavery, and of relations between European settlers and Indigenous Peoples. . . . By mining the archive for information, [LaCroix] expands our understanding of the range of ideas about union, federalism, and sovereignty.”—Annette Gordon Reed, University of Chicago Law Review

“No scholar is better equipped to challenge our understanding of the history of federalism than Alison LaCroix. In this pioneering study, she recovers the spirited, contingent, decades-long argument that shaped an era that most constitutional historians have dismissed as uneventful. Essential reading.”—Jill Lepore, author of These Truths: A History of the United States

“Alison LaCroix’s invaluable book is a fount of information and brilliant insights about a grievously neglected period of American constitutional development. It is often gripping in the stories it relates. This is truly essential reading.”—Sanford Levinson, author of An Argument Open to All: Reading The Federalist in the 21st Century

“A brilliant, alternately rollicking and harrowing account of the law in action in the nineteenth-century United States. Prodigiously researched and bristling with startling revisionist arguments, this book is far and away the best account of the roiling world of American federalism in the crucial decades between the War of 1812 and the Civil War. The Interbellum Constitution carries urgent lessons for the emerging federal-state battles of our times.”—John Fabian Witt, author of American Contagions: Epidemics and the Law from Smallpox to COVID

Professor LaCroix discusses her book in a virtual session sponsored by the Supreme Court Historical Society.

--Dan Ernst

Monday, June 3, 2024

Brinkman on "Sea Power, Neutrality, and Prize Law in the Seven Years' War"

Cambridge University Press has published Balancing Strategy: Sea Power, Neutrality, and Prize Law in the Seven Years' War (2024), by Anna Brinkman (King's College London). A description from the press:

What is the relationship between seapower, law, and strategy? Anna Brinkman uses in-depth analysis of cases brought before the Court of Prize Appeal during the Seven Years' War to explore how Britain worked to shape maritime international law to its strategic advantage. Within the court, government officials and naval and legal minds came together to shape legal decisions from the perspectives of both legal philosophy and maritime strategic aims. As a result, neutrality and the negotiation of rights became critical to maritime warfare. Balancing Strategy unpicks a complex web of competing priorities: deals struck with the Dutch Republic and Spain; imperial rivalry; mercantilism; colonial trade; and the relationships between metropoles and colonies, trade, and the navy. Ultimately, influencing and shaping international law of the sea allows a nation to create the norms and rules that constrain or enable the use of seapower during war.

Praise from reviewers:

'This is imperial, military, legal and maritime history at its scrupulous and creative best, at once both micro- and macro-historical. Through a detailed reconstruction of four cases coming before Britain's Court of Prize Appeal and concerning two Dutch and two Spanish vessels captured during the Seven Years War, Anna Brinkman convincingly reveals for the first time the overarching strategic role that the court played in balancing domestic and international law to keep the Dutch Republic and Spain neutral during the global conflict. Particularly nuanced - and wholly unique in prize history - is her attention to the human dimension of legal process: the myriad of people, personalities, ties, interests, and environments that destabilized or undergirded neutrality. A triumph of insight and scholarship.' -- David Hancock

'Balancing Strategy opens a window into the complex interplay of law, empire, seapower, and strategy. Through meticulous and well-documented case studies that incorporate legal records, private political accounts, and the popular press, Brinkman offers new insight into how Britain sought legitimacy for its increasing projection of power on the global stage.' -- Sarah Kinkel

An interview with Brinkman is available here, at New Books Network.

-- Karen Tani

Saturday, June 1, 2024

Weekend Roundup

  • Thomas G. Corcoran, 1935 (LC)
    A side note to the forgoing: At the start of his post, Dr. Reft reproduces a letter from Edward Holmes, the justice's nephew and executor, to Tom Corcoran, the justice's favorite legal secretary, in which the executor refers to "a question that intervenes between us."  Perhaps the question was the disposition of the Black Book.  In his often reliable memoir, Corcoran claimed that on the night the justice died, Edward Holmes said that the Black Book was "too personal" and should be destroyed, but that when the nephew's back was turned he "slipped it behind some other volumes on a shelf.  A little later I smuggled it out of the house under my shirt and sent it by courier the next day to the Harvard Law School."  Thomas G. Corcoran with Philip Kopper, “Rendezvous with Democracy: The Memoirs of ‘Tommy the Cork,’” Holmes, pp. 39-40, box 586, Corcoran MSS, Library of Congress.  I've never looked for corroborating evidence in the Edward J. Holmes Collection or other HLS records.  DRE.

  • The Beinecke Rare Book and Manuscript Library at Yale University has issued a call for applications for its Fellowship Program. The library "welcome[s] applications from scholars and graduate students locally and globally who utilize traditional methods of archival and bibliographic research as well as from individuals who wish to pursue creative, interdisciplinary, and non-traditional approaches to conducting research in the collections." 
  • The New-York Historical Society has announced substantial postdoctoral and predoctoral fellowships in Women's History.  Due date: June 30
  • New on the Digging a Hole podcast: David C. Schleicher and Samuel Moyn interview Dylan C. Penningroth on his book Before the Movement: The Hidden History of Black Civil Rights.  And congratulations to Professor Penningroth for winning the J. Willard Hurst Book Prize of the Law and Society Association for Before the MovementBerkeley Law's notice of the awards the book has garnered is here.
  • On the New Books in Intellectual History podcast,  Kunal M. Parker discusses The Turn to Process: American Legal, Political, and Economic Thought, 1870-1970.
  • On the New Books in African American Studies podcast, Robert K. D. Colby discusses An Unholy Traffic: Slave Trading in the Civil War South.
  • ICYMI: Robert W. Gordon, Stanford Law, on the Trump Conviction and the History of Presidential Crimes (SLS Blogs).  The 1924 Indian Citizenship Act (Smithsonian; History Today).  Policy approaches to addressing a history of racial discrimination (Stanford IEPR).  Delaware marks 70th anniversary of its role in landmark Brown v. Board decision (WHYY).
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 31, 2024

ASLH 2024 Registration Now Open

[We have the following communication from Ari Bryen, the Secretary of the American Society for Legal History.  DRE]

Registration is now open for the Annual Meeting! The meeting will be held in San Francisco, from October 24-26, 2024. We are grateful to the Program Committee, the Local Arrangements Committee and to our sponsors, UC Berkeley, Stanford University, and UC Law San Francisco.

The 2024 ASLH Annual Meeting will be held at the Hyatt Regency in San Francisco, California. The conference room rate is $209.00. You can reserve rooms here. The ASLH commits to filling a minimum number of rooms and faces heavy penalties if the number falls short. We ask that members please consider booking at the conference hotel.  

In addition to the main conference, two pre-conferences will be held on Thursday, October 24:

  • "Canadian Legal Histories: Current Research and Future Prospects" (lead organizers: Lyndsay Campbell, University of Calgary, and Constance Backhouse, University of Ottowa).
  • "Freedom Suits and Legal Regimes of Bondage across the Mediterranean, Atlantic, Iberian, and Indian Ocean Worlds" (organizer: Michelle McKinley, University of Oregon;  and

For further details on timing and location, please contact the pre-conference organizers directly.

As always, membership in the ASLH provides a substantial discount for conference registration, as well as access to Law and History Review. So if you are not currently a member, please renew your membership! Student memberships (digital only) are available for only $10.

We look forward to seeing you in San Francisco!

Frederick Douglass and the Two Constitutions

Frederick Douglass (NYPL)
We recently noticed that the papers resulting from "Frederick Douglass and the Two Constitutions: Proslavery and Antislavery," the Thomas M. Jorde Symposium for 2022, have been published in the California Law ReviewHere is a recording of the symposium, and here are the papers:

Frederick Douglass and the Two Constitutions: Proslavery and Antislavery
David Blight

Comment on Frederick Douglass and the Two Constitutions: Proslavery and Antislavery
Annette Gordon-Reed

"A Fixed Principle of Honesty": Frederick Douglass, False Certainties, and Words without Memory
Christopher Tomlins

Response to Professor Blight's Frederick Douglass and the Two Constitutions: Proslavery and Antislavery

Martha S. Jones

Frederick Douglass's Constitution
James Oakes

--Dan Ernst

Thursday, May 30, 2024

The Docket 7:1-2

Now online: issues 7:1-2 of The Docket, the online partner of Law and History Review:

Gautham Rao, Big Changes at Law and History Review

Barbara Lauriat, Robinson & Roberts v. Wheble (1771): A New “First” Trademark Case at Common Law

Lawrence Goldstone, Unreliable Narrator: The Federalist Essays

Bruce W. Dearstyne, A Judge and Presidential Candidate Searches for the Meaning of Due Process

Sohum Pal reviews Aziz Rana, The Constitutional Bind

Cameron Sauers reviews Giuliana Perrone, Nothing More Than Freedom

--Dan Ernst

Morgan on "Women, Violence and the Law – A Hidden History"

Mudlark press has published The Walnut Tree: Women, Violence and the Law – A Hidden History, by Kate Morgan (2024). A description from the press:

'A woman, a dog and a walnut tree, the more they are beaten, the better they’ll be.'

So went the proverb quoted by a prominent MP in the Houses of Parliament in 1853. His words – intended ironically in a debate about a rise in attacks on women – summed up the prevailing attitude of the day, in which violence against women was waved away as a part and parcel of modern living – a chilling seam of misogyny that had polluted both parliament and the law. But were things about to change?

In this vivid and essential work of historical non-fiction, Kate Morgan explores the legal campaigns, test cases and individual injustices of the Victorian and Edwardian eras which fundamentally re-shaped the status of women under British law. These are seen through the untold stories of women whose cases became cornerstones of our modern legal system and shine a light on the historical inequalities of the law.

We hear of the uniquely abusive marriage which culminated in the dramatic story of the ‘Clitheroe wife abduction’; of the domestic tragedies which changed the law on domestic violence; the controversies surrounding the Contagious Diseases Act and the women who campaigned to abolish it; and the real courtroom stories behind notorious murder cases such as the ‘Camden Town Murder’.

Exploring the 19th- and early 20th Century legal history that influenced the modern-day stances on issues such as domestic abuse, sexual violence and divorce, The Walnut Tree lifts the lid on the shocking history of women under British law – and what it means for women today.

An interview with Morgan is available here, at New Books Network. 

-- Karen Tani

Wednesday, May 29, 2024

Sachs on Good, Evil, and the American Founding

Stephen E. Sachs, Harvard Law School, has posted Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles, which is forthcoming in the Harvard Journal of Law and Public Policy:

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.
--Dan Ernst

Tuesday, May 28, 2024

Ruskola on Montesquieu and "Oriental Despotism"

Teemu Ruskola, University of Pennsylvania Carey Law School, has posted Oriental Despotism Inside Out: On the Global Travels of Montesquieu’s De l’esprit des lois:

Baron de Montesquieu (NYPL)
This speculative essay analyzes Montesquieu’s comparative method in his De l’esprit des lois (1748) and its contemporary legacies. It takes as its focus his theory of Oriental despotism. The first half of the paper focuses on two aspects of his method. First, Montesquieu’s empirical approach to political theory marks him apart from his humanist predecessors. Turning away from natural law and a search for universal principles, he instead attends to nature itself in order to understand the diversity of social and legal phenomena. Second, I comment briefly on Montesquieu’s reworking of Europe’s metageographic status. I analyze him as a key figure in replacing an essentially religious distinction between the Christian world and a heathen Orient with a more plural world divided into continents marked by cultural and political differences.

In the second half of the paper I turn to Montesquieu’s use of China as a paradigmatic instance of “Oriental despotism.” Paradoxically, Montesquieu develops his idea of despotism as a critique of French absolutism while projecting its prototype into the Orient, China in particular. In the final analysis, however, Montesquieu himself is forced to admit that in several key respects China does not fit the category it supposedly exemplifies. Yet despite its flawed empirical foundation, over time Oriental despotism mutates from a theory of politics into a theory of scientific racism with global implications. I conclude by examining the geopolitical implications of Montesquieu’s analysis with respect to the discourse of Chinese authoritarianism today.
--Dan Ernst

Monday, May 27, 2024

LHR 42:2

Law and History Review 42:2 (May 2024) is now available online:

Legal Pluralism as a Category of Analysis
Jessica Marglin, Mark Letteney

Legal Pluralism's Other: Mythologizing Modern Law
Caroline Humfress

Legal Pluralism from History to Theory and Back: Otto von Gierke, Santi Romano, and Francesco Calasso on Medieval Institution
Emanuele Conte

The Rise of the Indigenous Jurists
Clifford Ando

Interpolity Law and Jurisdictional Politics
Lauren Benton, Adam Clulow

The Uses and Abuses of Legal Pluralism: A View from the Sideline
Tamar Herzog

Rethinking the Rethinking of Legal Pluralism: Toward a Manifesto for a Pluri-Legal Perspective
Ido Shahar, Karin Carmit Yefet

The Edicts of the Praetors: Law, Time, and Revolution in Ancient Rome
Lisa Pilar Eberle

The Carried-Off and the Constitution: How British Harboring of Fugitives from American Slavery Led to the Constitution of 1787
    Timothy Messer-Kruse

Free Black Witnesses in the Antebellum Upper South
Eric Eisner

Disobedient Children, Hybrid Filiality: Negotiating Parent–Child Relations in Local Legal System in Republican China, 1911–1949
Shumeng Han, Xiangyi Ren

Human Rights at the Edges of Late Imperial Britain: The Tyrer Case and Judicial Corporal Punishment from the Isle of Man to Montserrat, 1972–1990
Christopher Hilliard, Marco Duranti

An Instrument of Military Power: The Development and Evolution of Japanese Martial Law in Occupied Territories, 1894–1945
Kelly Maddox

“Above the Written Law”: Iran-Contra and the Mirage of the Rule of Law
Alan McPherson

--Dan Ernst

Sunday, May 26, 2024

Sunday Roundup

  • The Dallas Bar Association will sponsor. with the J.L. Turner Legal Association, a conversation with Jose F. Anderson, University of Baltimore School of Law, on his book Genius for Justice: Charles Hamilton Houston and the Reform of American Law on Thursday, May 30, 2024, 12:00 PM to 1:00 PM, at Dallas’s Arts District Mansion.  Professor Anderson will highlight “cases litigated from Texas that were part of Houston's strategy to define the responsibility and privileges of citizenship under constitutional government.”  CLE credit is available.
  • We've previously noted the passing of Stephen J. PollakHere are Attorney General Merrick Garland's remarks at a memorial event for Mr. Pollak.

--Dan Ernst

Saturday, May 25, 2024

Weekend Roundup

  • Over at Balkinization, an interesting symposium on David Pozen's The Constitution of the War on Drugs (Oxford University Press, 2024) has wrapped up. This response by Pozen (Columbia Law) links to the various contributions, including by legal historian Shaun Ossei-Owusu (Penn Law).
  • Edward A. Purcell, New York Law School, looks back to Charles Evans Hughes's Supreme Court of the United States for inspiration on how Chief Justices can induce the resignations of Associate Justices  (The Hill).
  • Jus Gentium is out with a special issue (9:2), The Historicization of International Law and its Limits, organized by Jean d’Aspremont and Thomas Kleinlein.  It includes the article “Lather, Rinse, Repeat: The Historical Returns of International Law,” by Carl Landauer.
  • “On May 16, in celebration of the 70th anniversary of the Supreme Court Brown v. Board of Education decision, the National Archives in Washington, DC, hosted a panel discussion on the lasting impact of the historic legal decision.”  The panel included Sheryll D. Cashin, Georgetown Law; Randall L. Kennedy, of Harvard Law School; and Michael K. Powell, who moderated.  More.
  • Also, “Meet all the families behind the 5 school cases that swayed the Supreme Court” (LA School Report).
  • “Dr. John Kirk, George W. Donaghey Distinguished Professor of History at UA Little Rock, and the students in his fall 2023 Seminar in Public History class, a capstone course that focuses on collaborative research for students who are earning a Master of Arts in public history, have received the Lucille Westbrook Award from the Arkansas Historical Association” for the paper “Racial Discrimination in Jury Selection: The Arkansas Cases of the Bone Brothers, 1938-1940.”  More.
  • The program for the 2024 annual meeting of the American Political Science Association is now online.
  • ICYMI: Hardeep Dhillon on The Immigration Act of 1924 (Penn Today). "The 'Originalist' Justices Keep Getting History Spectacularly Wrong" (Balls & Strikes).  That "Appeal to Heaven" flag (AP; MSNBC).
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.