Saturday, April 10, 2021

Weekend Roundup

  • On Thursday, Victoria Woeste, who is retired from a Research Professorship at the American Bar Foundation (virtually) presented her article in progress “Practicing God’s Law in a Secular World: The Civil Rights Law Practice of the Rev. Fred W. Phelps Sr., 1964-2011,” at the University of North Carolina School of Law. 
  • Congratulations to Maeve Glass, associate professor of law at the Columbia Law School, upon her being awarded the Willis L.M. Reese Prize for Excellence in Teaching by students in the graduating Class of 2021.  Her teaching includes a seminar of the Legal History of American Slavery.
  • The Essex Historical Society is holding a three-part lecture series, “A Shared Past: Early African Americans in the Lower Connecticut River Valley.”  We note particularly that on Sunday, May 16 at 3 p.m. Dr. Jesse Nasta, a visiting assistant professor of African American studies at Wesleyan University, is scheduled to present “Sailors and Freedom Fighters: African Americans in the Connecticut River Valley, 1765–1865.” 
  • At 6 p.m. on Wednesday, April 14, the Delaware County Historical Society  will host a free dialogue on “Women’s Journey for Equal Rights.” Registration is necessary here.  “The program will highlight the contributions of Alice Paul, a county resident who attended Swarthmore College and transformed constitutional history.  (Daily Times.)
  • The members of the Presidential Commission on the Supreme Court of the United States are listed here.
  • The Missouri Supreme Court has launched a website celebrating the bicentennial of the state’s judiciary (Courier Tribune).
  • Angela Fernandez on Christopher L. Tomlins’s In the Matter of Nat Turner on Jotwell.
  • The Policy History Conference scheduled for this June has been canceled.  One will be held on June 1-4, 2022 in Tempe, Arizona.  A new call for papers, with the following submission guidelines, will go out in the coming weeks. 
  • Universities Studying Slavery will hold a virtual conference on April 15-16, 2021 at Georgetown University.  It is a consortium of 80 colleges and universities that meets twice yearly “to explore best practices and guiding principles about truth-telling projects addressing enslavement and racism in institutional histories.”  Register here.  Panels will be recorded and available through Georgetown’s Slavery, Memory, and Reconciliation website for viewing at a later date.
  • The “Centro de Investigação de Direito Privado (University of Lisbon - Faculty of Law), will hold an international conference/webinar on Indeterminate Concepts - 14, 15 and 16 of April /2021 (2:30 pm until 19:30 pm, BST). ... Presentations (in Portuguese) will be delivered by Portuguese and Brazilian professors.  Each session will have one hour of open debate and discussion.  The conference is free. Prior registration is required.  
  • ICYMI: A report of Martha Minow’s Grob Lecture on American Jewish Life at UVA (Cavalier Today).  Genna Rae McNeil–the first "Black tenure-track faculty member in UNC's history department–will retire this semester after working at UNC for 36 years” (Daily Tar Heel).  A crowd research project on racially restrictive covenants in Chicagoland (WBEZ).  Julie Suk on the ERA (Ms.)

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

Friday, April 9, 2021

Guggenheim Fellowships to Kessler, Perry, Premo, Rudolph & more

The John Simon Guggenheim Memorial Foundation has announced its 2021 fellows. We were excited to see multiple scholars whose work engages law and history:

  • Amalia D. Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies and Professor (by courtesy) of History, Stanford University 
  • Imani Perry, Hughes Rogers Professor of African American Studies, Princeton University
  • Bianca Premo, Professor of History, Florida International University
  • Julia Rudolph, Professor of History, North Carolina State University

Congratulations to all!

-- Karen Tani

Houser's "Bureaucrats of Liberation"

Myra Ann Houser, Associate Professor of History, Ouachita Baptist University, has published Bureaucrats of Liberation: Southern African and American Lawyers During the Apartheid Era (Leiden University Press, distributed by the University of Chicago Press, 2021):

Bureaucrats of Liberation
narrates the history of the Southern Africa Project of the Lawyers’ Committee for Civil Right under law, a civil rights organization founded in 1963 at the request of President John F. Kennedy. Between 1963 and 1994, the Southern Africa Project connected lawyers from Namibia, South Africa, and the United States. Within the Project’s network, activist lawyers exchanged funding resources, provided logistical support for political trials, and mediated new voting and governmental systems.

The Project’s history provides a lens into twentieth century geopolitics tied to anti-apartheid, decolonization, Cold War, and movements agitating against white supremacy. In doing so, it pays careful attention to the Project’s different eras, beginning with US Executive Branch officials helming the effort and evolving into a space where more activist-oriented attorneys on both sides of the Atlantic drove its mission and politics.

--Dan Ernst

Thursday, April 8, 2021

Weidemaier on Lawyers, Self-Government and the London Stock Exchange

W. Mark C. Weidemaier, University of North Carolina at Chapel Hill, has published Law, Lawyers, and Self-Governance During the Heyday of the London Stock Exchange in Law and Contemporary Problems 82 (2019): 195-223.  From the article:

This Article draws on original archival research, including the minutes of [London Stock Exchange (LSE)] committee meetings and correspondence with solicitors, to examine how the LSE managed its relationship with English courts and common law in the late nineteenth and early twentieth centuries. By studying that problem—rather than the problem of enforcing bargains—we can see the artificiality of any neat dichotomy between private and public legal systems. To keep English courts from disrupting its affairs, the LSE used both extralegal tools—for example, expelling members who filed prohibited lawsuits—and legal tools—such as monitoring judicial developments and funding litigation. Regardless of the nature of the tool, lawyers often shaped its response, and their advice was guided by explicitly legal concerns.
–Dan Ernst

Lustig on international law and the private corporation

Doreen Lustig (Tel Aviv University) published Veiled Power, International Law and
the Private Corporation, 1886-1981
 with Oxford University Press in 2020. From the publisher: 

Veiled Power conducts a thorough historical study of the relationship between international law and business corporations. It chronicles the emergence of the contemporary legal architecture for corporations in international law between 1886 and 1981. Doreen Lustig traces the relationship between two legal 'veils': the sovereign veil of the state and the corporate veil of the company. The interplay between these two veils constitutes the conceptual framework this book offers for the legal analysis of corporations in international law. 
By weaving together five in-depth case studies - Firestone in Liberia, the Industrialist Trials at Nuremberg, the Anglo-Iranian Oil Company, Barcelona Traction and the emergence of the international investment law regime - a variety of contexts are covered, including international criminal law, human rights, natural resources, and the multinational corporation as a subject of regulatory concern. Together, these case studies offer a multifaceted account of the history of corporations in international law over time. 
The book seeks to demonstrate the facilitative role of international law in shaping and limiting the scope of responsibility of the private business corporation from the late-nineteenth century and throughout the twentieth century. Ultimately, Lustig suggests that, contrary to the prevailing belief that international law failed to adequately regulate private corporations, there is a history of close engagement between the two that allowed corporations to exert influence under a variety of legal regimes while obscuring their agency.

 Praise for the book:

"... Lustig has produced a compelling and well-documented narrative. Scholars of international law as well as legal historians and legal theorists will find much to their interest in this monograph, which deserves to be read widely." - Filip Batselé

"Lustig's work is an excellent piece of scholarship providing much information regarding the direct paradigms that shape multinational corporations in international law and is a useful reference tool for those who are working on the history of international economic law." - P. Sean Morris

Further information is available here.

--Mitra Sharafi

Wednesday, April 7, 2021

Luban on Two Third Reich Lawyers

David Luban, Georgetown University Law Center, has posted Complicity and Lesser Evils: A Tale of Two Lawyers, which is to appear in the Georgetown Journal of Legal Ethics with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince:

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.

 --Dan Ernst

Chin and Chin on the War against Asian Sailors and Fishers

Gabriel Jackson Chin, University of California, Davis School of Law, and Sam Chew Chin, CUNY Graduate Center, have posted The War Against Asian Sailors and Fishers, which is forthcoming in the UCLA Law Review:

Beginning in the 1880s, maritime unions sought federal legislation to prevent Chinese, Japanese, Filipino, and Asian Indian sailors from serving as crew on U.S.-Flag vessels. This campaign succeeded in mandating citizenship requirements for crews which remain in the U.S. Code today. Similarly, federal and state laws limited the ability of Asians to fish, own fishing boats, or to serve on crews of fishing vessels. Few of these laws targeted Asians by name, but legislative history and contemporary media accounts make clear that racial exclusion motivated many facially neutral requirements such as literacy tests and restriction of jobs to citizens or those who had declared their intention to become citizens. As U.S. law restricted naturalization by race from 1790 to 1952, requiring citizenship had direct racial effects—white immigrants could be fishers or sailors, but not Asian immigrants. The expansiveness of exclusionary laws across time, geography, and level of government, its use of proxy categories to achieve racial discrimination, and yet its obscurity today, suggest the comprehensive nature of racial discrimination in the pre-Civil Rights era.

--Dan Ernst

CFP Workshop on the UN War Crimes Commission

[We have the following announcement.  DRE]

The United Nations War Crimes Commission (UNWCC), which operated from 1943-48, was a UN agency that supported localised prosecutions of international crimes committed during the Second World War. The Commission was composed of representatives from 16 Allied States and through its work war crimes and crimes against humanity were prosecuted in tribunals located in Europe and the Far East. Over the course of its lifetime, more than 2000 trials took place. The work of the UNWCC gives an insight into substantive and procedural international criminal law in the post war period.

Dr. Amina Adanan of Maynooth University Law Department is organising two online events this year, as part of her project on the UNWCC funded by the Royal Irish Academy. The aim of the project is to bring together UNWCC scholars from all over the world in an international collaborative network.

The first of these virtual events is a workshop, which will take place on 28 May 2021. The online workshop is an opportunity for UNWCC scholars to present on any aspect of their UNWCC research and receive feedback on their work from the other experts and attendees in a constructive environment. Presentations will be 10-15 mins and the event will include keynote lectures by leading scholars on the UNWCC.

Submissions for active participation in the workshop are sought by scholars working in the field. The closing date for submissions is 20 April 2021. For more information please click here.

Tuesday, April 6, 2021

Documents from Nigeria: A Photograph of Sir Egbert Udo Udoma


In this series, Samuel Fury Childs Daly looks at four legal documents (broadly construed) from Nigeria during its long period of military rule. This is the first of four. 

In the photograph I have of him, Sir Egbert Udo Udoma is seated in his chambers at the High Court in Kampala, Uganda, looking grumpily into the camera in full ceremonial dress. He autographed it grandly, and dated it May 1965, two years into his tenure as Uganda’s Chief Justice. Unlike the other sources I’ll write about this month, this one is not held by an archive or library. Rather, it comes from a less rarefied place: Ebay, where I bought it from someone who was presumably cleaning out his attic. 

Udoma was Nigerian judge who served as the first African Chief Justice of Uganda. He was one of a small, elite group of West African judges who traveled the length and width of the continent after independence, filling high-level positions in the judiciaries of eastern and southern Africa which had been vacated by Europeans and South Asians. Even though he is not well known today, Udoma had a fascinating career. Through his rulings, he exerted a subtle but important influence on African politics. Most importantly, he decided the case that paved the way for executive authoritarianism in his adopted country, Uganda v. Commissioner of Prisons, Ex Parte Matovu. He later returned to Nigeria, where he served on the Supreme Court. Intra-African judicial appointments like the one that brought Udoma to Uganda are less common today than in the past, but there is still a circuit that brings judges from West Africa to other places in the Commonwealth. Nigerian, Ghanaian, and Gambian judges serve across the small nations of the South Pacific, and in several jurisdictions in the Caribbean and central America. 

What kind of a judge has autographed headshots? The answer is one like Udoma – ambitious, upwardly mobile, and acutely aware of his image. His portrait is a reminder that celebrity is important in certain legal cultures. It’s clear why lawyers might want to cultivate fame – repute brings in business – but celebrity judges are less common. Why would a judge want to be famous, and how does celebrity shape the professional culture of the judiciary? My colleague Elizabeth Jacqueline Marcus (Newcastle University) and I are currently writing a paper on this topic, and Udoma figures in it. 

Udoma’s photograph is also interesting for how he is dressed. Like all Nigerian judges, Udoma wore the same outfit as his colonial predecessors, including robes and an elaborate white horsehair wig. Many African judiciaries have since done away with the wig, but Nigeria retains it to this day. Many outsiders to the legal profession see the wig as comic or pathetic, and non-lawyers mock it. To critics, it is a reminder that Nigeria’s legal system is of foreign origin – tangible proof that it was made by and for white men several centuries ago. Nonetheless, judges are attached to their wigs. To many of them, the wig stands for continuity, not colonial backwardness. It is an indispensable part of law’s pageantry, and judges and lawyers cherish it as a marker of their membership in a professional guild. Radical ideas can come from judges who wear wigs, and I’ve learned not to confuse the trappings of law with its substance. 

samuel.furychilds.daly@duke.edu 
@sfcdaly

Bassok on Constitutional Thought and the Havard Law Review Forewords

Or Bassok, University of Nottingham Faculty of Law and Social Sciences, has posted Beyond the Horizons of the Harvard Forewords, which is forthcoming in volume 70 of the Cleveland State Law Review (2021):

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it stands in tension with an understanding of judicial legitimacy in terms of expertise that goes back to Alexander Hamilton and dominated the Forewords up until the 1960s. Rather than viewing the Supreme Court as requiring public support to function properly, according to the Hamiltonian view, the Court requires “merely judgment.” Tracking the genealogy of judicial legitimacy in the Harvard Forewords also shows how the shift from Hamilton’s understanding of judicial legitimacy to the current understanding was connected to the invention of public opinion polling. This invention allowed for the first time in history to measure public support for the Court. Before this invention, with only elections as the accepted tool for measuring public support, understanding the Court’s legitimacy in terms of public support was impossible. With the rise of opinion polls as an authoritative democratic legitimator, the concept of judicial legitimacy changed as is reflected in the Harvard Forewords.

That “tribal campfire” metaphor is pretty terrific, especially when you remember that someone was always getting roasted.  

–Dan Ernst

Schmidt to Discuss "Civil Rights in America"

Christopher W. Schmidt discusses his book Civil Rights in America: A History today at 4 PM CT in an event sponsored by the American Bar Foundation, where he is a Research Professor.  Register here.

--Dan Ernst

Global Forensic Histories Workshop

A group of historians of law, medicine, and science came together for a virtual workshop in March 2021. The Global Forensic Histories Workshop was co-organized by Binyamin Blum (UC Hastings Law) and our blogger Mitra Sharafi (University of Wisconsin Law School). It was co-sponsored by UC Hastings Law, UW Law School, and the American Society for Legal History. 

Here is the line-up of papers:

Day 1 (Chair: Binyamin Blum)

Khaled Fahmy (University of Cambridge), “Forensic Medicine in nineteenth- century Egypt”

  • Mina Khalili (New York University), “Redefining Criminal Evidence”

Susanna Blumenthal (University of Minnesota), “Toward a Genealogy of the Pathological Liar”

Mitra Sharafi (University of Wisconsin–Madison), “Planted Poison and Wrongful Convictions”

Ian Burney (Manchester University), “A History of Innocence: Erle Stanley Gardner, the Court of Last Resort, and the Pursuit of Wrongful Conviction in Post-war America”

Day 2 (Chair: Mitra Sharafi)

Projit Mukharji (University of Pennsylvania), “Psychic Detectives: Occult technologies and braided forensics in the British Raj”

Keren Weitzberg (University College London), “White Backlash”

Claire Cage (University of South Alabama), “Reproductive Bodies and Forensic Medicine in Modern France”

Catherine Evans (University of Toronto), “Burning Bodies and Medico- Legal Expertise in Nineteenth-Century Britain”

Binyamin Blum (University of California, Hastings), “Forensic Culture in the Age of Empire: How Colonialism Shaped the Forensic Sciences”

Chris Hamlin (University of Notre Dame), “The severing of forensic medicine from public health”

The group shared meals at the end of each day using Uber Eats and SpatialChat.

--Mitra Sharafi

Monday, April 5, 2021

Zipes's Biography of Frank Murphy

Greg Zipes has published Justice and Faith: The Frank Murphy Story (University of Michigan Press):

Frank Murphy was a Michigan man unafraid to speak truth to power. Born in 1890, he grew up in a small town on the shores of Lake Huron then rose to become Mayor of Detroit, Governor of Michigan, and finally a U.S. Supreme Court Justice. One of the most important politicians in Michigan’s history, Murphy was known for his passionate defense of the common man, earning him the pun, “tempering justice with Murphy.”

Murphy is best remembered for his immense legal contributions supporting individual liberty and fighting discrimination, particularly discrimination against the most vulnerable. Despite being a loyal ally of Franklin Delano Roosevelt, when FDR ordered the removal of Japanese Americans during World War II, Supreme Court Justice Murphy condemned the policy as “racist” in a scathing dissent to the Korematsu v. United States decision—the first use of the word in a Supreme Court opinion. Every American, whether arriving by first class or in chains in the galley of a slave ship, fell under Murphy’s definition of those entitled to the full benefits of the American dream.

Justice and Faith explores Murphy’s life and times by incorporating troves of archive materials not available to previous biographers, including local newspaper records from across the country. Frank Murphy is proof that even in dark times, the United States has extraordinary resilience and an ability to produce leaders of morality and courage.

--Dan Ernst

Touro Law Review special issue on the life and legacy of Charles A. Reich

In January of 2020, Touro College Jacob D. Fuchsberg Law Center held a small conference to honor the life and legacy of Charles A. Reich. In the words of the organizers: 

Charles A. Reich looms large in the history of American law and society of the second half of the twentieth century. His law review article “The New Property” not only influenced Supreme Court case law, but continues today to inform how Property and Constitutional Law are taught. His best-selling book The Greening of America explained the 1960s counterculture. The conference examined his life’s work and how it influenced the law.

The Touro Law Review has now published many of the remarks from that conference, along with some previously unpublished writing by Charles Reich himself. Here's the Table of Contents from the special issue:

Introduction to the Conference: Commemorating the Life and Legacy of Charles A. Reich
Rodger D. Citron

Introduction to Charles A. Reich’s Keeping Up: Walking with Justice Douglas
Rodger D. Citron

Keeping Up: Walking with Justice Douglas
Charles A. Reich

My Friend, Charles Reich
Hon. Guido Calabresi

Charles Reich: Due Process in the Eye of the Receiver
Harold Hongju Koh

Charles Reich, New Dealer
John Q. Barrett

The Poverty Law Education of Charles Reich
Felicia Kornbluh and Karen M. Tani

Charles Reich and the Legal History of Privacy
Sarah A. Seo

Private Largess in the Digital Age: Privacy in Reich's the New Property
Raymond H. Brescia

Completing the Portrait: Concluding Thoughts About Charles Reich
Rodger D. Citron

-- Karen Tani

Saturday, April 3, 2021

Weekend Roundup

  • Registration is now open for ASLH 2021: the annual meeting of the American Society for Legal History, to be held in New Orleans, Louisiana on November 5-6, 2021. Register here.  Reserve a room in the conference hotel, the InterContinental New Orleans, for just $189/night, here.
  • In other ASLH news: “the ASLH announces a competition for 10 small grants to support legal history research in digital and print sources this summer. The application is open to ASLH members who are current graduate students at any stage as well as recent PhD or JD graduates (2019 or later).”  More.  
  • The Docket 4:1 (March 2021), an on-line companion to Law and History Review, "featuring interviews, articles, and more," is out!  Also: it's looking for a new editor.  Contact grao at american dot edu.
  • How Heather Sharkey and her students transcribed Alice Paul’s doctoral dissertation, “The Legal Position of Women in Pennsylvania" (1912).   (Penn Today)
  • Do you wonder about working with a developmental editor? Some answers here.
  • ICYMI: Just Deeds: Removing racially restrictive covenants in Minnesota (Sun Today).  Edward Kolla, Georgetown University-Qatar, on the history of passports (Gulf Times).

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

Friday, April 2, 2021

Legal Studies at Nova Southeastern

[We hear from our friends at Nova Southeastern University is readvertising the following position.  DRE.]

The Department of Humanities and Politics is looking for a full time faculty member in Legal Studies. Minimum requirements are an MA in either Philosophy, English, History, or Political Science along with a J.D. or a Ph.D. in one of these fields with an emphasis on: civil liberties; constitutional history; environmental law. The ability to teach courses in other disciplines housed in the Department of Humanities and Politics is very important. ABD’s close to completion will be considered.
The facutly member being replaced was a legal historian.  Those doing legal history, including advanced ABDs with JD in hand, are encouraged to apply.

Introduction: Four Documents from Nigeria Under Martial Law

I’m grateful to the editors of the Legal History Blog for inviting me to contribute this month, and especially to Professor Mitra Sharafi for the warm welcome!

For my stint as a guest blogger, I’d like to share four documents about four people, each of which reveals something important about law in postcolonial Nigeria. They include a list of burned belongings, a self-help book for Christian women, a gossipy memoir, and a wrinkled photograph. They all figure marginally in a book I’m currently writing, Soldier’s Paradise: Military Rule in Nigeria, which uses legal sources to understand Nigerian politics and society during its long period of martial law. The book shows how law and authoritarianism were intertwined in the four decades of military rule, and how soldiers used law in their ideology and administration. They had been trained for the battlefield, not for public life, and they valued law because it gave them a set of tools to “discipline” civilians – or so they thought. The legal system was the bridge that connected the military to Nigerian society at large, but it didn’t always work the way soldiers wanted it to. Judges were not always the disciplinarians the military hoped they would be, and law’s force could cut more than one way. 

Studying law exposes the lie that decolonization was a story of doomed revolutionaries and the elites who sold them out. This was a time of strange bedfellows and surprising political commitments. In courtrooms and tribunals, unexpected stands were taken, and puzzling alliances were made. We find British-trained military strongmen borrowing radical language from Frantz Fanon or Ngũgĩ wa Thiong'o, and committed anti-colonialists arguing that English law was the only thing that could bring about true decolonization. Judges and soldiers shared a rhetorical commitment to “independence,” but they seldom agreed about what it was. Bright moral lines became hazy in court. Sometimes, soldiers who publicly venerated freedom were the people most committed to preserving colonialism despotism – and sometimes it was stodgy, Anglophile judges who took the most radical positions against the military. Decolonization was shadier than the pieties of national historiography allow, and nothing shows this better than law. 

The four sources I'll be sharing with you this month are not the most consequential ones I could have chosen. None are well-known in Nigerian jurisprudence, and with the exception of one involving the musician Fela Kuti, they are not about well-known people or events. Rather, I’ve chosen them because they stood out to me on the shelf, or jumped off the page in a law report. Some of them probably seemed important to me because I’m not a lawyer, which, if I’m being honest, is a longstanding source of anxiety. I do not have legal training, which means I don’t always zero in on the most important part of a case. I am too far down the legal history path to turn back now, but there are still many things about law that I find bewildering. My ignorance leads me to make mistakes, both empirically and interpretively. But being an outsider can also be an asset (or so I tell myself). The confusion and frustration that I sometimes feel about law is what most people feel about it all the time. This is useful when I’m trying to understand how people navigate law, or what they think it is (which is not always the same as what it actually is). My stumbles mirror those of the soldiers I write about, who got tripped up by procedure and terminology too. After all, misunderstandings can shape how people use law as much as what they get “right” about it. 

Borrowing an organizational premise from Rohit De, I’ll be posting reflections on a document by each of the following personalities: 

A globetrotting judge 
A scandalous musician 
A litigious businesswoman 
An ambitious magistrate 

You can expect a post every Tuesday. I look forward to it! 


samuel.furychilds.daly [at] duke [dot] edu

Twitter: @sfcdaly

Pfander and Joffroy on Federalists, Slavery and the Equal Footing Doctrine

James E. Pfander, Northwestern University School of Law, and Elena Joffroy, a 2020 graduate of Northwestern Law, have posted Equal Footing and the States "Now Existing": Slavery and State Equality Over Time, which is forthcoming in the Fordham Law Review:

This Essay, a contribution to Fordham’s Symposium on the Federalist Constitution, reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine.

Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the Now Existing Caveat to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.

--Dan Ernst

Thursday, April 1, 2021

Minow to Speak at UVA on Nuremburg Trials at 75

[We have the following announcement.  DRE]

On Tuesday, April 6, 2021 - 8:00 p.m. to 9:00 p.m. EDT, the University of Virginia Jewish Studies Program will host Professor Martha Minow (Harvard Law School) for the 2021 Grob Lecture on American Jewish Life, “The Nuremberg Trials at 75: Lessons and Legacies.” Registration available here.

ASIL Prize to Wheatley

The American Society of International Law has awarded its International Legal Theory

Scholarship Prize to Natasha Wheatley (Princeton University) for her article, "Legal Pluralism as Temporal Pluralism: Historical Rights, Legal Vitalism, and Non-Synchronous Sovereignty" in Dan Edelstein, Steganos Geroulanos and Natasha Wheatley, eds., Power and Time: Temporalities in Conflict and the Making of History (Chicago: University of Chicago Press, 2020). Here is the opening of the piece:

Theoretically prior to any enunciation of law’s power is the notion of jurisdiction—the “share of the world” for which that law carries force. We often think about jurisdiction in spatial terms: as a zone, a sphere, a blocked out shape on a world map; as something that travels along roads and trade routes, that clings to coastlines or extends out across oceans, that overlaps in imperial borderlands, that layers with geographically intermingled communities, or that clumps unevenly the pockmarked capacity of a “weak state.” But what if law’s authority broke up and collided along axes of time and not just space?

 This essay opens up the history of some temporally frustrated sovereignties—sovereignties that layered or splintered according to a temporal metric instead of (or as much as) a spatial one. I focus on state formations forced to wrestle with bodies of law and bundles of rights that stemmed from a time before the advent of their own sovereignty. As against more contained sorts of rights routinely digested into new states and assimilable without conceptual violence or structural incoherence (civil laws, for example), I am interested in rights claims that reach toward or threaten the scale of sovereignty itself. Latent, simmering, maybe half-smothered, such rights can linger as deepset sovereign qualifications—as legal reminders that the establishment of the state was a not a totalizing phenomenon, that rights could evade its transformative grasp and puncture its pretension to seamless jurisdiction and seamless sovereignty. These are rights “from” the past that refuse to be simply “of ” the past: they keep pace with history and continually reanchor themselves in the present, even if they are politically or philosophically at odds with the current sovereign order. In refusing to be subsumed by the state’s legal order, these rights engender a legal pluralism whose relative strength or weakness is contested through temporal metaphors and logics rather than spatial ones: protagonists debate the “survival” or “extinguishment” of rights, assert their “continuity” or “rupture,” their “renewal” or “relinquishment.” They ask if rights are living or if they are dead.

Further information is available here.

--Mitra Sharafi 

 

Wednesday, March 31, 2021

Michael Stolleis (1941-2021)

Michael Stolleis, an Honorary Fellow of the American Society for Legal History since 2001, has died.  Here is the notice of the Max Planck Institute for Legal History and Legal Theory:

Michael Stolleis passed away in Frankfurt on 18 March 2021, just a few months before his 80th birthday. The Max Planck Institute owes him a great deal. Since joining the Max Planck Society in 1991, he shaped our Institute like no other. He led it alone for many years, and even after his retirement, he took on the responsibility again. His approachability, his unconditional reliability and his rhetorical elegance have been exemplary for many members of staff. Without Michael Stolleis, we would not have this new building on the Westend Campus, something he was always quite pleased about – and without him, we would likely no longer exist as an Institute.

We have placed a book of condolence in the foyer of the Institute until the 16 April, which Institute staff members are invited to sign. We will also include letters in the book that are submitted to us; they can be addressed to the Managing Director Thomas Duve, for the attention of Nicole Pasakarnis.
Thomas Duve's obituary is here

--Dan Ernst.  H/t: DS

Welcome, Samuel Fury Childs Daly!

 We are delighted to welcome our guest blogger for the month of April: Samuel Fury Childs Daly (Duke University). 

Professor Daly is a historian of twentieth-century Africa. His research combines the methods of legal, military, and social history to examine the post-independence period in both West and East Africa. He is the author of A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020), a study of the Biafra War (1967-70). Using an original body of legal records from the secessionist Republic of Biafra, the book looks at how technologies, survival practices, and moral ideologies emerging from the fighting shaped how crime was practiced and perceived after Biafra's defeat. Connecting the violence of the battlefield to violent crime, it sheds new light on law and politics in Africa after colonialism. 

Prof. Daly's current project is a transnational history of military desertion over the longue durée. From desertion in 17th-century Kongo armies to the African experience in the world wars, this project reveals how leaving the battlefield could be a productive act. At many points in African history, deserters founded communities, created new social orders, and generated fresh ideas about honor and obligation. 

Prof. Daly's other research interests include the global history of drug trading, customary law in the British empire, and the history of policing and prisons.

Welcome, Professor Daly!

--Mitra Sharafi

Van Cleve to Speak on Constitutional Reform

On Friday, April 2, 2021 - 12:00 p.m. to 1:00 p.m. EDT, the National Archives hosts a session on Making a New American Constitution, by George William Van Cleve.  He will explore "the flaws in the United States Constitution that obstruct reforms urgently needed for national unity, proposes amendments, and shows that a new constitutional convention is essential to achieve them. Joining Van Cleve will be professors David Tanenhaus and Julian Maxwell Hayter.”

--Dan Ernst

Tuesday, March 30, 2021

Repatriated Women: A Digital Project

We have the following via "The Twelve Key," the blog of “Claire Kluskens, a Census/Genealogy Subject Matter Expert and Digital Projects Archivist at the National Archives and Records Administration (NARA), Washington, DC”:

Staff members at the National Archives at Chicago are tagging various records series in Record Group 21, Records of District Courts of the United States, to make them more accessible to a wider audience.

One of these series is the U.S. District Court, Detroit, Repatriation Records, 1918-1970 (National Archives Identifier 1150838). Between 1907 and 1922, women lost their U.S. citizenship if they married a foreign national. Later, many women wished to regain their U.S. citizenship. Depending upon when they applied, the women were required to file either a Petition for Naturalization or take the Oath of Allegiance. This series primarily includes the latter document.
More.  Dan Ernst.  H/t: JG

Sawyer on Originalism, the South, and the New Right

We recently noted Calvin Terbeek’s article on the racial politics of originalism and now note another work on the same topic, Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr, by Logan Sawyer, III, University of Georgia School of Law, in the Journal of Policy History 33:1 (January 2021): 32-59 :

Sam Ervin (LC)
Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other conservative southerners explain to outsiders and to themselves why they shifted from support for an interventionist state powerful enough to enforce segregation to an ideology founded on individual rights and liberty. It thus eased the South’s integration with the emerging New Right.

--Dan Ernst

Ramnath on citizenship & decolonization

 Kalyani Ramnath (Harvard University) has published "Histories of Indian Citizenship in the Age of Decolonisation," Itinerario (2021), 1-22. The piece explores the following three books: 

Oliver Godsmark, Citizenship, Community and Democracy in India: From Bombay to Maharashtra, c. 1930–1960 (London: Routledge, 2018)

Uditi Sen, Citizen Refugee: Forging the Indian Nation after Partition (Cambridge: Cambridge University Press, 2018)

Ornit Shani, How India Became Democratic: Citizenship and the Making of the Universal Franchise (Cambridge: Cambridge University Press, 2018)

Here's the abstract: 

This essay discusses the important contributions of three new works on Indian citizenship by Ornit Shani, Uditi Sen, and Oliver Godsmark. Their books discuss the territorial partition of the subcontinent into India and Pakistan in 1947, the framing and inauguration of the Indian Constitution in 1950, the preparation of voter rolls and the first democratic elections, and linguistic reorganisation of Indian states in 1956, alongside questions of refugee rehabilitation, counterinsurgency measures and rising ethnonationalisms. The emphasis is not only on the legal regimes of national citizenship, but also how it is unevenly mapped and experienced. This emphasis on territoriality is an invitation to ask questions about continuity and change in the transition from empires to nation-states, as well as invented pasts and imagined futures that transcend national borders set up after the end of colonial rule.

Further information is available here.

--Mitra Sharafi 

Monday, March 29, 2021

Daly on de Smith's "Judicial Review of Administrative Action"

Paul Daly, University of Ottawa, has posted de Smith’s Judicial Review of Administrative Action (Stevens & Sons, London, 1959), which is forthcoming in Leading Works in Public Law, ed. O'Brien & Yong:

Stanley A. de Smith (wiki)
 In his classic text, Judicial Review of Administrative Action, Professor de Smith drew out from the prerogative writs a body of general principles relating to judicial review of administrative action.  Published in 1959, de Smith’s book wove a principled pattern from disparate strands of jurisprudence. His landmark work set the scene for the development of a common law tapestry of judicial review of administrative action, which by the end of the century had definitively replaced the earlier patchwork quilt of case law.

I begin with an introduction to the author of the text and a description of the 1959 text (“The Work”).  Subsequently, I explain the background against which the text was written (“The Context).  I then consider its importance in the development of contemporary administrative law (“The Significance”). I conclude by considering the evolution of Judicial Review of Administrative Action in the decades after its progenitor’s death and the evolution of the law of judicial review of administrative action (“The Legacy”).

In both its creation and its evolution in the hands of others, Judicial Review of Administrative Action has been of central importance to the common law tradition of administrative law.
–Dan Ernst

Sunday, March 28, 2021

Michael de Laval Landon (1935-2021)

Michael de Laval Landon, professor emeritus at the University of Mississippi, passed away at his home in Oxford on Tuesday.  He went emeritus in 2009.  His publications included The Triumph of the Lawyers: Their Role in English Politics, 1678-1689 (1970); The Honor and Dignity of the Profession: A History of the Mississippi State Bar Association, 1906-1976 (1979); Erin and Britannia: The Historical Background to a Modern Tragedy (1981); and The University of Mississippi School of Law: A Sesquicentennial History (2006).

I was not to surprised to learn from his obituary and another notice that, in addition to teaching and publishing scholarship, Professor Landon actively served his church and local government.  I first encountered him when, during his long service as Secretary-Treasurer of the American Society for Legal History (1988-1997), I chaired the Local Arrangements Committee in 1994 and got to know him as part of the Society’s Old Guard, who came to legal history because of the allure of the common-law tradition but stayed to do the administrative chores that kept a learned society run wholly by volunteers going. 

Since Professor Landon left the Secretary-Treasurership, the leadership of the ASLH has diversified beyond what I could have imagined when I met him.  If word of his death is an occasion for reflecting upon how much stronger the field of legal history is as a result, it is also a moment for recalling how much it was sustained because scholars like him did their part.

--Dan Ernst

Saturday, March 27, 2021

Weekend Roundup

  • "Rhonda Y. Williams, the John L. Seigenthaler Professor of American History, will deliver the next lecture in Vanderbilt Law School’s Dean’s Lecture Series on Race and Discrimination. The online event will be on Wednesday, March 31, beginning at noon CT."  More.
  • “Between 1939 and 1941, the Works Progress Administration collaborated with the New York City Tax Department to collect photographs of most buildings in the five boroughs of New York City. In 2018, the NYC Municipal Archives completed the digitization and tagging of these photos. This website places them on a map."  H/t: JQB
  • Maddie Burakoff on Wisconsin’s 1921 Equal Rights Law and La Follette Progressivism.  A video celebrating the legal legacy of Tiera Farrow, Kansas City’s pathbreaking female lawyer (41KSHB). Renee Knake Jefferson and Hannah Brenner Johnson on the women shortlisted for the Supreme Court before Sandra Day O'Connor (The Hill).
  • ICYMI: The filibuster's racist history (Vox).  Discrimination against Asian women has long history (AJC).  Julian Davis Mortenson and Nicholas Bagley discuss “Delegation at the Founding” with Mark Joseph Stern (Slate).  FDR and the REA brings electricity to Northern Michigan (Ticker).

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

Friday, March 26, 2021

Chelvanayakam archive launched

The S. J. V. Chelvanayakam Fonds, a new archive hosted by the University of Toronto Scarborough, is now available here. S. J. V. Chelvanayakam was a Tamil lawyer and leader in mid-20th-c. Sri Lanka. His papers have been preserved and donated by his descendants. The collection covers 1921-88 (mostly 1960s-70s), and is in Tamil (over 50%), Sinhala (a small %), and English. It consists of 664 file folders, which is approximately 16,480 pages. About a quarter has currently been digitized. 

Here is the finding aid. Here is the digitized material. Digitization is ongoing, so it is worth checking back periodically for new documents.  

The launch event took place online on Feb.26, 2021. The video will soon be made available online.

--Mitra Sharafi

Thursday, March 25, 2021

TerBeek on Brown & originalism's racial origins

Calvin TerBeek (University of Chicago) has published the following article: " 'Clocks Must Always Be Turned Back': Brown v. Board of Education and the Racial Origins of Constitutional Originalism," American Political Science Review (published online on 16 March 2021). Here's the abstract:

The Republican Party has adopted constitutional “originalism” as its touchstone. Existing accounts of this development tell either a teleological story, with legal academics as the progenitors, or deracialized accounts of conservatives arguing first principles. Exploiting untapped archival data, this paper argues otherwise. Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s. Building on this updated empirical understanding, the theoretical claim is that ideologically charged elite legal academics and attorneys in Departments of Justice serve more of a legitimating rather than an originating role for American constitutional politics upon a long coalition’s electoral success. Finally, by showing the importance of race to constitutional conservatism’s development, this article posits that the received understanding of a “three-corner stool” of social, economic, and foreign policy conservatism needs revision.

Further information is available here.  Eric Segall has commented on Professor Terbeek's article over at Dorf on Law.  H/t JQB.

--Mitra Sharafi 

Wednesday, March 24, 2021

YLJ CFP: Law of the Territories

 [The Yale Law Journal has announced the following Call For Papers.  DRE]

Special Issue on the Law of the Territories

Date Posted: March 23, 2021; Submission Deadline: July 15, 2021

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131's Special Issue.

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people-98% of whom are racial or ethnic minorities-live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States's annexation and governance of its colonies. The Court's holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law-and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to:

  • the relationship between federalism and empire;
  • the challenge of cultural accommodation within the United States's constitutional framework;
  • the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination;
  • the intersection of race, gender, and class inequality in the context of U.S. colonial governance;
  • and the promises and pitfalls of territorial autonomy.

Eligibility and Submission Details.  The Journal invites submissions from both established and emerging scholars. We also welcome submissions from practitioners, jurists, students, and others with special expertise on the territories. Consistent with our Submissions Guidelines, we will not review Articles or Essays written by current J.D. students at Yale Law School or authors who were J.D. students at Yale Law School at any time during Volume 131's submissions window. We specifically encourage authors from the territories to submit.

For Articles, we strongly encourage submissions of fewer than 25,000 words, including footnotes. For Essays, we strongly encourage submissions of fewer than 15,000 words, including footnotes.

The deadline to submit an Article or Essay is July 15, 2021. To submit, please use our online submission system. If this is your first time using our submission system (launched in February 2021), please make a new account by clicking "Not a member?" on the login page. When you are asked to select a "Submission Type," select "Special Issue: Law of the Territories" (do not select "Article" or "Essay").

Please direct questions about this Special Issue to the Managing Editors, Josh Altman (joshua.altman@yale.edu) and Sammy Bensinger (samantha.bensinger@yale.edu).

Schwartz and Mikhail on Exaggerating Madison

David S. Schwartz, University of Wisconsin Law School, and John Mikhail, Georgetown University Law Center, have posted The Other Madison Problem, which is forthcoming in volume 89 of the Fordham Law Review:

James Madison (NYPL)
The conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed.

Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. Moreover, the ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption. We conclude by suggesting that scholars pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery.

--Dan Ernst

Tuesday, March 23, 2021

DC Circuit Historical Society Seeks Executive Director

The Historical Society of the District of Columbia Circuit is seeking a new Executive Director. This position is the primary staff employee of the Historical Society, supporting and facilitating the work of the Officers, Directors, and Committees of the Board, maintaining the Society’s office, books and records, and interfacing with the judges and staff of the Courts of the D.C. Circuit, and the community. The Executive Director is a part-time, salaried employee, reporting directly to the President of the Society.  More.

--Dan Ernst

Hearne on the sex trade in the Russian empire

Siobhán Hearne (Durham University) published the following article last year: "Prosecuting Procurement in the Russian Empire," Journal of Social History 54:1 (2020), 185-209. Here's the abstract: 

Concern about the issue of forced prostitution reached its height in the Russian empire (as elsewhere in Europe and the Americas) at the turn of the twentieth century, as part of the wider international "white slave" panic. In 1909, new antiprocurement statutes were incorporated into the Russian empire's Criminal Code to ensure that those who forced, coerced, or encouraged young women to enter the commercial sex industry felt the full force of the law. This article uses a case study of the Russian empire's Estonian provinces (Estliand and Lifliand) to highlight the regional nature of Russian imperial experience. Prosecuting procurement was aligned with the priorities of local government, and the authorities in Revel' (Tallinn) and Iu'rev (Tartu) used the issue of procurement to bolster their revenue. Here, the statutes gave the authorities additional tools for targeting individuals, such as managers of unlicensed brothels, who deprived the government of the income it generated from regulating the commercial sex industry. Drawing on court cases from the early 1910s, this article also examines the interaction of lower-class people with the state, their engagement with the legal system, their knowledge of the law, and the rhetorical strategies they employed to in their attempts to secure specific outcomes.

Further information is available here.

--Mitra Sharafi 

Monday, March 22, 2021

Paxton-Turner on Continental Originalism

Ashlee Paxton-Turner has posted Continental Originalism: Keeping Our Republic:

Much ink has been spilled on originalism. This we all know. If we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning of the Constitution is this idea of securing the nation’s survival and preserving our union. For all that has been written on originalism, the key theme of union preservation has been consistently overlooked. And when we do not talk about union preservation, we are not faithfully answering what the words of the Constitution meant when they were drafted. Making union preservation our lodestar can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Plainly put, until we start taking the theme of union preservation seriously, we continue to risk our ability to keep our republic.

--Dan Ernst

Edling, "Perfecting the Union"

Oxford University Press has published Perfecting the Union: National and State Authority in the US Constitution (Dec. 2020), by Max M. Edling (King's College London). A description from the Press:

For most of the twentieth century, the American founding has been presented as a struggle between social classes over issues arising primarily within, rather than outside, the United States. But in recent years, new scholarship has instead turned to the international history of the American union to interpret both the causes and the consequences of the US Constitution.

In Perfecting the Union, Max M. Edling argues that the Constitution was created to defend US territorial integrity and the national interest from competitors in the western borderlands and on the Atlantic Ocean, and to defuse inter-state tension within the union. By replacing the defunct Articles of Confederation, the Constitution profoundly transformed the structure of the American union by making the national government more effective. But it did not transform the fundamental purpose of the union, which remained a political organization designed to manage inter-state and international relations. And in contrast to what many scholars claim, it was never meant to eclipse the state governments.

The Constitution created a national government but did not significantly extend its remit. The result was a dual structure of government, in which the federal government and the states were both essential to the people's welfare. Getting the story about the Constitution straight matters, Edling claims, because it makes possible a broader assessment of the American founding as both a transformative event, aiming at territorial and economic expansion, and as a conservative event, aiming at the preservation of key elements of the colonial socio-political order.
A sample of advance praise:

"A bold and bracing reinterpretation of America's founding. In examining anew the determination of the Framers to preserve the powers of the states, Max Edling alters the prism through which we view the forces of change and continuity, equality and subjugation, and strength and weakness that defined America's beginning. The illumination that Perfecting the Union generates is often startling." -- Gary Gerstle

"A fascinating, learned exploration of the conceptual significance of 'Union' in the framing period. Edling provocatively argues for the Constitution as a renewed compact of union, with a relatively effective fiscal-military federal government and reinvigorated state governments. This deeply rewarding book provides a refreshing new, synthetic account of the creation of the United States." -- Mary Sarah Bilder

More information is available here. You can find an interview with the author here, at New Books Network.

--Karen Tani

Saturday, March 20, 2021

Weekend Roundup

  • Do you have thoughts on the academic letter of recommendation (LOR) system? Our blogger Mitra Sharafi and Ronit Stahl welcome your feedback here by Friday, March 26. This is for a LHB blogpost and/or a piece elsewhere.
  • In the opinion pages of the New York Times, historian Gabriel Winant (University of Chicago) makes the case for better treatment of care workers and stronger government regulation of the care economy,
  • Via Balkinization: Akhil Amar (Yale Law School) has started a podcast on "America's Constitution.

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

Friday, March 19, 2021

Bruce on Epic Systems and Labor Legal History

Stephen Bruce, a Washington, D.C. attorney, has posted Epic Errors: The Supreme Court Ignores the History of Collective Actions and Decades of Struggle to Establish 'Living Wage' Standards:

If an employer can take away the right of “acting together” from its employees and force them to proceed only “individually” to enforce rights related to their wages and other terms and conditions of employment, the employer has interfered with or restrained the “collective power of individuals” that Alexis de Tocqueville observed in Democracy in America. The Norris-LaGuardia Act of 1932, the National Labor Relations Act of 1935, and the Fair Labor Standards Act of 1938 are all New Deal era statutes – all of which are still in force today – which provide for the right of employees to proceed collectively or in concert. These statutes were the culmination of decades of struggle in workplaces and communities, state and federal legislatures, and state and federal courtrooms. Each rests on detailed Congressional findings that individual employees do not “commonly” enjoy “actual liberty of contract” or “full freedom of association” and have an “inequality in bargaining power” vis a vis the employer, and that “collective” actions to resolve disputes over the terms and conditions of employment are in the interest of employees and the public. And while it is rarely noticed today, from 1923 to 1925, the Supreme Court issued three unanimous decisions on the unconstitutionality of “compulsory arbitration,” holding that compulsory arbitration implicates the due process and liberty of contract protected by the Fourteenth Amendment, except in temporary emergencies. See, e.g., Charles Wolff Packing Co. v. Court of Indus. Rel., 267 U.S. 552, 565-66 (1925).

In Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624-25 (2018), a 5-4 majority opinion, written by the then-new Justice Neil Gorsuch, upheld compulsory arbitration agreements with “class action waivers” in three companion cases, even though the waivers clearly constituted unbargained-for restraints on the collective enforcement action provided in Section 16(b) of the Fair Labor Standards Act. All of the cases involved the right to receive overtime pay, which applies even when employees earn more than the minimum wage. In upholding the class/collective action waivers, the majority opinion in Epic displayed a near total ignorance of class and representative actions in “the old, nearly forgotten world before 1966," Elizabeth K. Spahn, “Resurrecting the Spurious Class,” 71 Geo. L.J. 119, 120 (1982). It also displayed a woeful ignorance of the history of the use of “liberty of contract” theories to block the enforcement of wage and hour standards, and Congress’ rejection of those theories in the legislative findings and declarations of policies of the New Deal legislation.
--Dan Ernst

Hollis-Brusky & Wilson, "Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture"

 Oxford University Press has published Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture (Oct. 2020), by Amanda Hollis-Brusky (Pomona College) and Joshua C. Wilson (University of Denver). A description from the press:

Fueled by grassroots activism and a growing collection of formal political organizations, the Christian Right became an enormously influential force in American law and politics in the 1980s and 90s. While this vocal and visible political movement has long voiced grave concerns about the Supreme Court and cases such as Roe v. Wade, they weren't able to effectively enter the courtroom in a serious and sustained way until recently. During the pivot from the 20th to the 21st century, a small constellation of high-profile Christian Right leaders began to address this imbalance by investing in an array of institutions aimed at radically transforming American law and legal culture.

In Separate But Faithful, Amanda Hollis-Brusky and Joshua C. Wilson provide an in-depth examination of these efforts, including their causes, contours and consequences. Drawing on an impressive amount of original data from a variety of sources, they look at the conditions that gave rise to a set of distinctly "Christian Worldview" law schools and legal institutions. Further, Hollis-Brusky and Wilson analyze their institutional missions and cultural makeup and evaluate their transformative impacts on law and legal culture to date. In doing so, they find that this movement, while struggling to influence the legal and political mainstream, has succeeded in establishing a Christian conservative beacon of resistance; a separate but faithful space from which to incrementally challenge the dominant legal culture.

Both a compelling narrative of the rise of Christian Right lawyers and a trenchant analysis of how institutional networks fuel the growth of social movements, Separate But Faithful challenges the dominant perspectives of the politics of law in contemporary America.

Advance praise:

"Separate But Faithful is a fascinating, exhaustively researched, and highly readable story of the rise and challenges faced by three ultraconservative religious law schools-Ave Maria, Liberty, and Regent-and their mission driven faculty and students. It is also theoretically rich, focusing especially on 'support structure' theory in relation to social movements and law, and full of insights about legal hierarchies, the structure of legal education, and the role of law in social change. In short, it is a superb contribution as narrative and theory-builder." -- Bryant Garth

"Hollis-Brusky and Wilson's book, Separate But Faithful, is a comprehensive account of a legal movement on the rise, and one that has obtained significant positions of authority in government, including the courts. Their book is a must read for those seeking to understand the direction of the courts and the law, and how legal change happens." -- Leah Litman

More information is available here. And you can listen to an interview with the authors here, at New Books Network.

-- Karen Tani