Friday, August 12, 2022

Ng's "Political Censorship in Hong Kong"

Michael Ng, The University of Hong Kong, has published Political Censorship in British Hong Kong: Freedom of Expression and the Law (1842–1997), with the Cambridge University Press:

Drawing on archival materials, Michael Ng challenges the widely accepted narrative that freedom of expression in Hong Kong is a legacy of British rule of law. Demonstrating that the media and schools were pervasively censored for much of the colonial period and only liberated at a very late stage of British rule, this book complicates our understanding of how Hong Kong came to be a city that championed free speech by the late 1990s. With extensive use of primary sources, the free press, freedom of speech and judicial independence are all revealed to be products of Britain's China strategy. Ng shows that, from the nineteenth to the twentieth century, Hong Kong's legal history was deeply affected by China's relations with world powers. Demonstrating that Hong Kong's freedoms drifted along waves of change in global politics, this book offers a new perspective on the British legal regime in Hong Kong.

--Dan Ernst

Wednesday, August 10, 2022

ASLH Program Now Available

The American Society for Legal History has released the program for the 2022 meeting: here

More from the announcement:

Thanks so much to the Program Committee, chaired by Sophia Lee and Fahad Bishara, for crafting such exciting offerings, representing some of the best that the ASLH community has to offer. 

We look forward to seeing you in Chicago. As a reminder, preconference events begin Thursday, November 10. Panels will begin on Friday, November 11. We will gather Friday evening at the University of Chicago for our plenary lecture, by Risa Goluboff (University of Virginia), entitled, "'Charlottesville' as Legal History." Saturday's closing reception will be held at Northwestern Pritzker School of Law. We are grateful, as ever, for the support of our partner institutions.

Please take this opportunity to register early. Early registration is available until October 19, but the Society is grateful for members' early registration as it helps us greatly in our planning. Our conference will take place in the Sheraton Grand Chicago, right in the heart of downtown. We kindly ask that you use the conference hotel, as registration there is important for the continued financial health of the society.

Further announcements and reminders will follow, but we invite you to peruse the program and register for the conference. As a reminder, registrants are required to demonstrate vaccination against COVID-19 (by presenting their vaccination card or a photo of it at the registration desk in Chicago), and are required to abide by the ASLH Policy on Professional Conduct.

-- Karen Tani

Swanson on Patents and "Useful Citizens" in the Antebellum US, Texas Republic of Texas and CSA

Kara W. Swanson, Northeastern University School of Law, has posted Beyond the Progress of the Useful Arts: The Inventor as Useful Citizen, which is forthcoming in the Houston Law Review:

There is a robust scholarly discussion about whether and how the United States patent system fulfills its constitutional directive to promote the progress of the useful arts. There is also increasingly a discussion that investigates extra-constitutional roles for the patent system, from signaling and credentialing to self-expression and bolstering nationalism. This Article expands our pluralistic vision of the patent system by exploring the ways in which the patent system has served to foster and identify what I call 'useful citizens', with the ability to participate in civic duties. As legislators and bureaucrats experimented with patent laws and practices in a struggling post-colonial country, they came to define the inventor-patentee in unique ways. A patent certified the originality and independent thought of the inventor, abilities defined as crucial for participation in democratic self-governance. I argue that this unacknowledged sociopolitical role for patents explains in part the persistence of the US patent system in the face of the long-running critique of its efficacy in promoting innovation and economic growth. Further, I argue that the ideology of inventor as useful citizen reveals the role of patents and invention in the historic restriction of full citizenship rights in the United States to white men and the continuing stakes of patent system participation as patents continue to be linked in the public imagination to American national identity.

To make this argument, this Article develops a comparative legal history among the early United States, the Republic of Texas (1836-46), and the Confederate States of America (1861-65), contrasting the US patent system to the patent systems in each of these imitative democracies formed by former US citizens. I analyze how these countries, engaged in desperate battles for survival, devoted scarce resources to establishing a patent office, briefly tracing the constitutional, legislative, and bureaucratic history of the Texas and Confederate patent systems. In each case, politicians looked to the US patent system as a model even as other patent systems, such as those of Britain and Mexico, offered examples seemingly advantageous to these cash-strapped and under-industrialized nations. I argue that the form each new patent system took demonstrated that the white men who created it believed, based on their US experience, in the inventor as useful citizen, and that the political context of these start-up republics explains their shared decision to implement patent systems that credentialed inventors as well as incentivized invention. Returning to US history, I demonstrate how using patents to identify useful citizens was linked to race and gender restriction of civil rights. In conclusion, I consider how the continued link of patents and citizenship offers possibilities for both the inclusive and exclusive mobilization of patents as group credentials.
--Dan Ernst

Tuesday, August 9, 2022

Sharafi on Abortion in South Asia

It was published some time ago but has just gone open access: Abortion in South Asia, 1860–1947: A medico-legal history, by former LHBlogger Mitra Sharafi, University of Wisconsin Law School, in Modern Asian Studies:

In the progression of stages toward unintended lives, the two stops on either side of abortion—contraception and infanticide—have been studied extensively by historians of South Asia. We know much less about abortion, particularly during the colonial period. Drawing upon published judgments, unpublished case records, forensic toxicology reports, and treatises on Indian medical jurisprudence, this article suggests that anti-abortion law was generally enforced in colonial India only when women died as a result of illegal abortions. This approach was contrary to the Indian Penal Code (IPC), which criminalized most abortions even when the women survived. The pattern was a continuation of the pre-IPC approach in India. This article explores possible explanations for the lax enforcement of anti-abortion law in South Asia during the late nineteenth and early twentieth centuries, considering abortion as experienced by South Asian and British women alike. It proposes as contributing factors: challenges in detection, the social movement for the protection of Hindu widows, colonial anxieties about false allegations of abortion among South Asians, the common phenomenon of imperial (British) husbands and wives living apart, and physicians’ desire to protect doctor–patient confidentiality. The article focuses on two key cases involving abortion: the Whittaker-Templeton case from Hyderabad (1896–1902) in which a British woman died following an abortion; and the Parsi matrimonial case of T. v. T. from Bombay (1927), in which a Zoroastrian woman alleged that her pharmacist husband had forced her to terminate three pregnancies by ingesting drugs.
–Dan Ernst

Monday, August 8, 2022

Schlegel's "While Waiting for Rain"

John Henry Schlegel, UB Distinguished Professor of Law and Floyd M. and Hilda L. Hurst Faculty Scholar at the University of Buffalo School of Law, has published While Waiting for Rain: Community, Economy, and Law in a Time of Change (University of Michigan Press):

What might a sensible community choose to do if its economy has fallen apart and becoming a ghost town is not an acceptable option? Unfortunately, answers to this question have long been measured against an implicit standard: the postwar economy of the 1950s. After showing why that economy provides an implausible standard—made possible by the lack of economic competition from the European and Asian countries, winners or losers, touched by the war—John Henry Schlegel attempts to answer the question of what to do.

While Waiting for Rain first examines the economic history of the United States as well as that of Buffalo, New York: an appropriate stand-in for any city that may have seen its economy start to fall apart in the 1960s, 70s, and 80s. It makes clear that neither Buffalo nor the United States as a whole has had an economy in the sense of “a persistent market structure that is the fusion of an understanding of economic life with the patterns of behavior within the economic, political, and social institutions that enact that understanding” since both economies collapsed. Next, this book builds a plausible theory of how economic growth might take place by examining the work of the famous urbanist, Jane Jacobs, especially her book Cities and the Wealth of Nations. Her work, like that of many others, emphasizes the importance of innovation for economic growth, but is singular in its insistence that such innovation has to come from local resources. It can neither be bought nor given, even by well-intentioned political actors. As a result Americans generally, as well as locally, are like farmers in the midst of a drought, left to review their resources and wait. Finally, it returns to both the local Buffalo and the national economies to consider what these political units might plausibly do while waiting for an economy to emerge.
Hardcover and paper publication is forthcoming, but the book is already available “open access and free to read on the web Funding is provided by the Andrew W. Mellon Foundation, as part of the Sustainable History Monograph Pilot.”  You may now or soon read it on JSTOR, Project Muse, OAPEN, ScienceOpen, and Internet Archive.

--Dan Ernst

Saturday, August 6, 2022

Weekend Roundup

  • Do you know about Founders Online, maintained by the National Archives?  H/t: Matt Steilen.
  • Here's a useful thread on dissertation prizes, including the Cromwell Prize in legal history.
  • At the Washington University St. Louis, Rebecca Wanzo, professor and chair of the Department of Women, Gender, and Sexuality Studies in Arts & Sciences, will be teaching Politics of Reproduction, an interdisciplinary course that will "explore topics including reproductive health, law, disability, economics, film, politics, reproductive justice and religion through a series of in-person events and public webinars."
  • We recently noted the Notice & Comment symposium on Bill Novak's New Democracy. Since that posting, additional commentaries have gone up, by Ganesh Sitaraman (Vanderbilt University Law School), Christoper J. Walker (University of Michigan School of Law), Orly Lobel (University of San Diego), and Jane Manners (Temple University Beasley School of Law). Stay tuned for another mini-symposium on the book soon, in the Law & History Review's online companion (The Docket).
  • “18 Civil War historians and professors of legal history disputed [Students for Fair Admissions’] “erroneous” claim that the 14th Amendment prohibits any consideration of race in admissions policies” in their amicus brief in Students for Fair Admissions vs. Harvard University (Harvard Gazette).

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

Friday, August 5, 2022

American Bureaucracy and the Constitution: An ICH Seminar

[We have word that Fall 2022 seminar for advanced graduate students and junior faculty, sponsored by the Bonnie and Richard Reiss Graduate Institute for Constitutional History at the New-York Historical Society, which is not to be confused with the OG seminar still being conducted by the Institute for Constitutional Studies at the George Washington University Law School. DRE.]

American Bureaucracy and the Constitution, from the Founding Era to the Post New Deal

Gillian Metzger and Nicholas R. Parrillo

How has the role of government in everyday life changed throughout our nation's history? Today, a deep and historically inflected debate is raging over the legitimacy of American bureaucracy. As context for that controversy, this seminar will trace the constitutional history of the U.S. administrative state, starting with the Founding and the early Republic and moving through the Civil War and Reconstruction; the Progressive Era; and the rise and fall of the New Deal order.  The seminar will trace evolution in the separation of powers, focusing on the development of federal regulatory power, legislative delegations of authority to the bureaucracy, and struggles over political control of administrators.

Gillian Metzger is the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School, where she is also faculty co-director of Columbia’s Center for Constitutional Governance. In 2021, she served as a senior counsel in the Office of Legal Counsel in the U.S. Department of Justice. Nicholas R. Parrillo is Townsend Professor of Law at Yale, with a secondary appointment as professor of history. His research and teaching focus on administrative law and government bureaucracy, both past and present.

The seminar will be presented in person at the New-York Historical Society, 170 Central Park West, New York, NY 10024, on the following dates:

    Friday, November 18, 2022 | 2–5 pm ET
    Friday, December 2, 2022 | 2–5 pm ET
    Friday, December 9, 2022 | 2–5 pm ET
    Friday, December 16, 2022 | 3–6 pm ET

(Although we encourage students to attend the class in person, livestream participation will be offered to admitted students who do not live in the New York Metropolitan Area or who are unable to attend a class in person. If you are interested in attending some or all of the class sessions virtually, please indicate this in your application statement.)

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities.

Space is limited. To apply, please submit the following material to ich@nyhistory.org by October 7, 2022:
(1) Your C.V.; (2) A short statement on how this seminar will be useful to you in your research, teaching, or professional development.

Successful applicants will be notified soon thereafter. For further information, please email Alexander Kassl at ich@nyhistory.org.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Thursday, August 4, 2022

Sandburg's "Subversive Legal History"

Okay, we don't know how we missed this book, and the series in which it appears, until we just now saw William Eves's review in the AJLH, but Russell Sandburg, Cardiff Law, has published Subversive Legal History: A Manifesto for the Future of Legal Education (Routledge, 2021):

Provocative, audacious and challenging, this book rejuvenates not only the historical study of law but also the role of Law Schools by asking which stories we tell and which stories we forget.

It argues that a historical approach to law should be at the beating heart of the Law School curriculum. Far from being archaic, elitist and dull, historical perspectives on law are and should be subversive. Comparison with the past underscores: how the law and legal institutions are not fixed but are constructed; that every line drawn in the law and everything the law holds as sacred is actually arbitrary; and how the environment into which law students are socialised is a historical construct. A subversive approach is needed to highlight, question, de-construct and re-construct the authored nature of the law, revealing that legal change on a larger scale is possible. Far from being archaic, this recasts legal history as being anarchic.

Subversive Legal History is not a type of Legal History but is its defining characteristic if it is to be a central part of Law School life. It describes a legal method that should not be the preserve only of specialist legal historians but rather should be part of the toolkit of all law students, teachers and researchers.

This book will be essential reading for all who work and study in Law Schools, proposing a radical new approach not only to the historical study of law but also to the content, purpose and ambition of legal education. A subversive approach can revolutionise Law Schools providing a more ambitious legal education which is grounded in the socio-legal reality, helping to ensure that today’s law students are better equipped to be the professionals and citizens of tomorrow.
It is the first book published in the series Transforming Legal Histories:

This book series showcases work which takes a historical approach to question understandings about law. This approach places today’s substantive law in its context, enabling an understanding of social and legal change and the complex relationship between change and continuity. It is designed to place the historical study of law at the heart of the law curriculum. The reach of the series is not limited in time or space, producing books that cover a wide range of jurisdictions and periods. The editorial board welcome proposals which engage with a general audience in relevant legal and non-legal fields including where appropriate, a student readership. 
--Dan Ernst

Wednesday, August 3, 2022

California Legal History: The CSCHS Review

 [Like us, you may not have been aware that some years back the newsletter of the California Supreme Court Historical Society was reestablished as the bi-annual CSCHS Review, to explore “California's legal history in the broadest sense. Our authors are academics, judges and attorneys. Here is an update from Molly Selvin.  DRE.]

Our articles represent important new research. For example, the exploration by attorney Bob Wolfe of the litigation surrounding the 1915 release of Birth of a Nation, D. W. Griffith’s incendiary portrayal of post-Civil War America. The film’s racist depiction of African Americans has been appropriately condemned. Less well known is the long struggle Wolfe recounts, by lawyers representing the newly formed NAACP around California as well as by some local government leaders, to halt showings of the film. Wolfe also meticulously documents the film’s role in stoking renewed interest in the Ku Klux Klan; membership in the group swelled during the 1920s, including thousands of California residents as well as many elected officials and law enforcement officers.

In our current issue, attorney Colleen Regan and I detail how California’s bar examination questions, to our surprise, tracked some of the twentieth century’s most pressing political and policy issues. In addition to asking prospective lawyers to untangle hypothetical negligence, contract and inheritance disputes, the California bar exam, from 1933-2021 often presented questions involving racial and gender equality, free speech, association, and religious expression — issues that generated fierce national debate and often violence. In addition to demonstrating the basic competencies necessary to practice law, we conclude that bar examiners in past decades included these social justice questions because they believed that lawyers had a responsibility to think broadly about equity and civil rights — issues newly resonant, particularly in the post–World War II years.

Tuesday, August 2, 2022

Nicoletti Wins Richards Prize

Congratulations to Cynthia Nicoletti, Virginia Law, for winning the George and Ann Richards Prize for the best article published in the Journal of the Civil War Era in 2021. The article, “William Henry Trescott: Pardon Broker,” 

details the efforts of William Henry Trescot, “executive agent” for South Carolina, who secured pardons in order to facilitate the restoration of land the federal government had seized from lowcountry planters during the war.  She demonstrates how Trescot’s maneuvering in the Johnson White House and with Freedmen’s Bureau officials throughout 1865 and 1866 was integral in explaining the failure of Reconstruction-era land redistribution in the United States.

In the words of the prize committee, “Nicoletti offers an important new perspective on a familiar subject: the pardoning of ex-Confederates by U.S. president Andrew Johnson. Taking a novel methodological approach to this topic, her well-written article shows the critical role that the South Carolinian William Henry Trescot played in not only encouraging Johnson’s issuance of pardons but also facilitating the restoration of land to former slaveowners in the U.S. South. In doing so, “William Henry Trescot, Pardon Broker” makes a substantial contribution to the scholarship on the Reconstruction era and strengthens our understanding of its legacies. The denial of freedpeople’s demands for land redistribution as an essential foundation of self-determination and restorative justice was far from inevitable, as Nicoletti concludes. “Instead, the nation that emerged from the struggles of the Civil War was one that was actively made by men like William Henry Trescott."

Professor Nicoletti presented the paper at an annual meeting of the American Society for Legal History (and other legal history venues).

--Dan Ernst

Monday, August 1, 2022

CFP: Historical Reflections on Modern Constitutionalism

Via Professor Raphael Peixoto (Ufersa Law School and IDP-DF) and Professor Cristiano Paixão (University of Brasília) we have the following Call for Papers:

Constitutionalism and written constitutions are fundamental elements of the modern legal-political experience. We can identify in the revolutions of the late 18th century the formation of the decisive historical context that made possible a new way of understanding law and politics, inaugurating a new concept and a new constitutional practice. 

This “constitutional revolution”, however, did not occur in the same way across the globe, but was marked by very different historical processes, producing plural constitutional traditions and experiences. Constitutionalism should also not be interpreted as a linear phenomenon, based on ideas of progress and evolution. If the modern constitutional lexicon made possible the permanent demand for inclusion, equality and limitation of political power, it also lived closely with colonialism and exclusion and was a useful instrument for authoritarian regimes. 

To historically understand this complex and multifaceted development, it is necessary to adopt an interdisciplinary perspective. Producing knowledge in the field of constitutional history requires, therefore, a theoretical-methodological contribution and the perspective of approaching the most varied types of knowledge: law, history, political science, sociology, etc.

The Legal Journal of the Universidade Federal Rural do Semi-Árido invites researchers to submit studies that can contribute to the historical reflection on modern constitutionalism. The dossier aims to encourage the production of research with various aspects: intellectual and conceptual history, specific constitutional experiences, institutional practices, constituent processes, theoretical-methodological aspects, etc. 

The authors of the texts must be doctors or doctors in co-authorship with, at most, one postgraduate student. Authors must have a PhD. 

Deadline: September 30, 2022

Guidelines for submission: https://periodicos.ufersa.edu.br/rejur/about/submissions

-- Karen Tani



Sunday, July 31, 2022

Thank You, Kristin Olbertson!

We are very pleased to have had Kristin A. Olbertson, Alma College, as our guest blogger this month.  Here are her posts, collected for your convenience:

Barbarians in the Dock: How Vulgar Speech Become a Crime in 18th-Century Massachusetts
Speech, Law, & Power in the American Revolution
The Work-Life Balance & Other Myths
A Historian Watches Netflix's “History of Swear Words”
Reading Poetry, Writing Legal History
On Sources, Silences, & Research Spaces

Thanks, Professor Olbertson!

–Dan Ernst

On Sources, Silences, & Research Spaces

     When white Americans and European immigrants began to settle on the Great Plains in the nineteenth century, they were so unnerved by the deathly silence, broken only by the keening wind, that some of them went mad. Or at least this is the proposition investigated in a recent article by paleoanthropologist Alex Velez. Since he neither fully replicated their sensory experiences (omitting howling wolves as well as the creatures that shared settlers' sod homes) nor considered the cultural and historical context that would have conditioned their interpretations of said experiences, his study doesn't really explain the reports of "prairie madness."

    But it does raise questions about what counts as silence, how silences are created, and how that relates to the physical spaces in which we find ourselves. Scholars have been, well, voluble about silences in the archives over the past several years. Therefore when I was writing my book The Dreadful Word and attempting to mentally reconstruct eighteenth-century criminal speech prosecutions, I was acutely aware of whom I was largely not hearing: white women, indigenous people, and African-descended people. Why were their voices so rarely in these records? And what would this silence have signified in eighteenth-century courts?

    I also began wondering where, if not in prosecutions, I might hear these people's profane, abusive, or vulgar speech, or alternately, what sources might record their legally or politically significant behavior. I'm currently attending the Bright Institute at Knox College, a summer workshop for professors of early American history at liberal arts colleges. This year's theme is material culture, and in the course of our discussions I've had occasion to consider an inherited cupboard, a gifted dress, and stolen cloth as potential sources for legal history, particularly when trying to better hear the voices of women and enslaved people.

    The spaces where our sources for legal history exist is especially on my mind this summer, as joyful tweets about "returning to the archive at last!" pop up in my timeline. These tweets are often accompanied by a photograph of a repository of documents, text-based sources with which legal historians are perhaps most comfortable. I intend to work in just such an archive in a few weeks. But I'm also thinking about what spaces might hold other kinds of sources that allow different voices to be heard. I'm wondering about the implications of marginalized people using objects to exercise legal power, and what it would mean to write their actions into the story of colonial New England.

    None of these ideas is fully fleshed out; I'm essentially sitting in my sod house, listening to the wind and the wolves, trying to sort out my thoughts (without all the settler colonialism, I hope). I am beginning work on my next book, focusing on women's testimony in eighteenth-century New England courts. I am especially interested in the kinds of knowledge and expertise they brought to legal settings (both civil and criminal), how they established their credibility, and how the nature and extent of their participation in court business changed over time.

    This is my final guest post for LHB. Thanks again to Dan Ernst for offering me the opportunity to guest blog this past month; I've really enjoyed the experience. 

--Kristin A. Olbertson

Saturday, July 30, 2022

Weekend Roundup

  • The journal Federal History seeks “an assistant editor for a Law and Constitution roundtable. . . .  The editor will develop and edit this annual panel in conjunction with the journal editor.  This is a volunteer position and requires minimal time.  Must have a background in U.S. legal and constitutional history." For more information or to apply, send a letter of interest and cv to  Benjamin Guterman, Editor, Federal History, at federalhistory@gmail.com. H/t: H-FedHist/JLG.
  • Martha Allbertson Fineman, Emory Law, seeks a repository for the records of the Feminism and Legal Theory Project.  (Ms.) 
  • A new entry is up in the HLS series, “Cases in Brief”: Carol Steiker discusses Furman v. Georgia, "a 1972 landmark Supreme Court decision that declared the death penalty unconstitutional under the Eighth Amendment."
  • On September 21, 2022 , at 12:00 p.m, EDT, in honor of Constitution Day, the Supreme Court Historical Society will, via Zoom, screen its newest documentary, on Marbury v. Madison, and host a discussion with the Society’s Clare Cushman and Donald B. Ayer, Chair of the Publications Committee. Register.
  • The Board of Directors of the University of California Hastings College of the Law has voted to drop “Hastings” from its name and proceed as the University of California College of the Law, San Francisco (Reuters).
  • Historical Review, "a publication of the Florida Supreme Court Historical Society, features articles celebrating the 50th anniversary of the Florida Office of the State Courts Administrator"(Florida Bar News).
  • Federal judges attended the Originalism Summer Seminar, which we assume was sponsored by the Georgetown Center for the Constitution  (Joseph Mark Stern).
  • Congratulations to Aditya Bamzai, UVA Law, upon his election to the American Law Institute.
  • ICYMI: Mary Ziegler on the Disappearance of the "Life of the Mother" exemption (Atlantic).  Brad Snyder on why the Warren Court largely bears the for the current Supreme court’s  unfounded assertions of judicial supremacy (Politico). Steven Lubet on the Supreme Court’s selective history (The Hill)Allison Orr Larsen on the Court's use of history in Dobbs and Bruen (Politico).  A tipping point for professors and the collective good of peer review? (Slate).

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

Friday, July 29, 2022

Davies on Showing Justices the Door

Ross E. Davies, George Mason University-Antonin Scalia Law School, has posted Impeachment by Any Other Name, which appears in the University of Kansas Law Review:

Ward Hunt, J. (LC)
The subject of how and when Justices of the U.S. Supreme Court leave their jobs has been thoroughly and ably masticated. What more remains to be chewed up and spit out? Perhaps not much, but still a little. By examining and framing the departures from office of some Justices of the U.S. Supreme Court — and the persistence in office of some others — from the perspective of government actors seeking to influence those departures, I hope to provide some perspective on both the efficacy and the legitimacy of such efforts. This little paper is, in other words, a historical introduction to the informal removal of judges.
--Dan Ernst

Thursday, July 28, 2022

Notice & Comment Symposium on Novak's "New Democracy"

Back in March, we noted the publication of William Novak's New Democracy: The Creation of the Modern American State (Harvard University Press). The book has generated a range of interesting commentaries, including those featured in an ongoing symposium over at the Yale Journal of Regulation's Notice & Comment blog. Here is what is up so far:

-- Karen Tani



Wednesday, July 27, 2022

Legal Histories of Empire

We hear that the third "Legal Histories of Empire" conference, held this year in Maynooth, Ireland, was terrific.  For those who missed it, here is the final program and abstracts.

--Dan Ernst

Tuesday, July 26, 2022

Hohfeld, 100 Years On

Hohfeld devotees rejoice: Wesley Hohfeld: A Century Later: Edited Work, Select Personal Papers, and Original Commentaries, edited by Shyamkrishna Balganesh, Columbia Law School; Ted M. Sichelman, University of San Diego School of Law; and Henry E. Smith, Harvard Law School (Cambridge University Press) is now available online.

Wesley Hohfeld is known the world over as the legal theorist who famously developed a taxonomy of legal concepts. His contributions to legal thinking have stood the test of time, remaining relevant nearly a century after they were first published. Yet, little systematic attention has been devoted to exploring the full significance of his work. Beginning with a lucid, annotated version of Hohfeld's most important article, this volume is the first to offer a comprehensive look at the scope, significance, reach, intricacies, and shortcomings of Hohfeld's work. Featuring insights from leading legal thinkers, the book also contains many of Hohfeld's previously unseen personal papers, shedding new light on the complex motivations behind Hohfeld's projects. Together, these selected papers and original essays reveal a portrait of a multifaceted and ambitious intellectual who did not live long enough to see the impact of his ideas on the study of law.

Among its eighteen chapter’s is John Henry Schlegel’s Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor, describe in the introduction of the volume as follows:

John Schlegel gives Hohfeld's work a distinctively human dimension.  Schlegel's contribution traces Hohfeld's difficulties in acculturating to the life of a law professor, first at Stanford and then at Yale. Using Hohfeld's correspondence with Roscoe Pound as its focus, the chapter reveals Hohfeld's own insecurities about his role in the academy and the ways in which he constructed a narrative around them over the course of his career. Constantly worried about the inadequacy of his salary - both objectively and in comparison to his peers at other schools - Hohfeld is portrayed as a thinker, distinctly unsure of his place in the legal academy butunwilling to abandon his pretensions about his intellectual abilities. Schlegel portrays Hohfeld's friendship with Pound as driven by elements of sycophancy, self-interest, and genuine scholarly regard for the latter's contributions to legal thinking. In so doing, Schlegel reveals Hohfeld to have been significantly less confident about the value of his work during his own lifetime, something that a bare reading of his foundational papers does not reveal. A particularly intriguing theme in Schlegel's chapter, which captures some of the controversy around Hohfeld's character as part-formalist and part-Realist, is the extent to which Hohfeld saw himself doing something fundamentally different from attempting to develop a legal science of juridical ideas, in the vein of Christopher Columbus Langdell. Schlegel documents how Hohfeld - despite being a graduate of Harvard Law School - never fully embraced the ideas of Ames, Langdell, and Beale but situated himself more in thevein of a scholar attempting to engage the world of lawyers and judges more directly. Schlegel's narrative captures these ambiguities in Hohfeld's professional life, best summarized by his characterization of Hohfeld as a "Westerner" attempting to assimilate within the world of the East Coast legal academy.

--Dan Ernst

Monday, July 25, 2022

Ablavsky Wins LSA's Hurst Prize

Congratulations to Gregory Ablavsky, Stanford Law School, for winning the J. Willard Hurst Book Prize of the Law and Society Association “for this year’s best sociolegal history book. Ablavsky’s book, Federal Ground: Governing Property and Violence in the First U.S. Territories (Oxford University Press, 2021), explains the growth of federal authority in the first two U.S. federal territories—the Northwest and Southwest. While the Washington administration, Congress, federal officials, land office administrators and other federal bureaucrats sought to assert their vision of federal power over the West, the land they sought to govern and transform was far from empty. His book addresses the underlying questions of what federal power is and who its architects are. The book further identifies how the federal government can be studied—not as a monolith, but as the outcome of many different struggles playing out at grass-roots levels.”

We hear that Nada Moumtaz, University of Toronto, received Honorable Mention for God’s Property: Islam, Charity, and the Modern State (University of California Press, 2021).

--Dan Ernst

Reading Poetry, Writing Legal History

     Writing is always a fraught process. It can be especially so during a pandemic. In 2020 and early 2021, when I was completing revisions to my book, I found I needed something to bring structure to my days and weeks. But I also needed liberation from the four walls of my house and the seemingly endless rinse-and-repeat cycle of pandemic life. I needed fresh perspective on material I'd been working on for years; I needed to be inspired.

    I started to begin each day by reading poetry. Theodore Roethke reminded me to pay attention to the living things outside my window, and thereby rooted me in time and in the seasons. Thus I noticed when I heard the first mourning dove of the year (in 2021, March 3rd; this year, March 10th). As Adrienne Rich writes in "A Walk by the Charles," "What lends us anchor but the mutable?" Her words were often on my mind as I worked to draw out the larger themes of my argument, without losing sight of the details specific to eighteenth-century Massachusetts.

    Some verse was a little too evocative of the here and now. Although originally written about a different time and place, Kipling's lines about "the men who edged their agonies and chid them in their pain" and "the idle-minded overlings who quibbled while they died" were a little too on the nose in early 2020 ("Mesopotamia 1917"). This kind of orientation to daily life did not encourage constructive reflection.

    Others, though, invited me to slow down, pay attention, and absorb their offerings. Poets such as e.e. cummings and W.S. Graham and Derek Walcott demanded attention to their neologisms: "mud-luscious," "puddle-wonderful," and "outfloats"; "saltcut," "strewn-silver," and "sparse-powdered." Walcott justly asserted that "when I write/this poem, each phrase go be soaked in salt." When powering through thousands of prosecutions, sometimes it's easy to skim for keywords and dismiss entire phrases as mere legal boilerplate. The practice of reading poetry helped me return to the sources with my ears newly primed for those phrases soaked in salt.

    And what of writing? Did the poetry inspire better prose? My colleague Bob Vivian, a poet and writer, thinks it can; he has described reading poetry before writing "like taking a flame from another person and coaxing into one's own." Bob's beautiful metaphor obscures the fact that igniting the first person's flame might have required several frustrating hours of rubbing sticks together.  But over the long pandemic winter, I took heart from cummings, who assures us, "--whose hearts are mountains, roots are trees,/it's they shall cry hello to the spring." And, also, from Scottish poet Edwin Morgan's rollicking tribute to "Sir James Murray" (creator of the Oxford English Dictionary), so stuffed with Scots words you'd swear it was a Robbie Burns poem, a reminder that language is supposed to be fun: "To work, to work! To words!"

--Kristin A. Olbertson

Saturday, July 23, 2022

Weekend Roundup

  •  AHA Perspectives on History has a brief interview with Linda Kerber about her essay, Frightened.
  • Annette Gordon-Reed spoke on “The Future of History” in the Amphitheater at the Chautauqua Institution (Post-Journal).
  • Ashley Hannay, Manchester Law School, received the Sir Anthony Hart Doctoral Paper Prize for his paper The Origins of the Statute of Uses, 1536, which he presented at the 25th British Legal History Conference at Queen’s University Belfast (Irish Legal News).
  • Sarah Barringer Gordon and Kathleen Brown, have received a Klein Family Social Justice grant from Penn Arts & Sciences for Free State Slavery and Bound Labor: Pennsylvania.  “This project will create and launch a course examining slavery in Pennsylvania, where the effects of race-based bondage have long been underestimated. Undergraduate students will explore the legal history of enslavement and resistance through legal materials, newspapers, and other primary documents. (Almanac).

  • From Slate: disability historians Aparna Nair and Kylie M. Smith on the ethics and legality of selling patient and inmate records from now-defunct asylums and psychiatric institutions. 
  • T. T. Arvind, York Law School, and Christian R. Burset, Notre Dame Law School, have updated their paper on Entick v. Carrington, which is just out in the Kentucky Law Journal.
  • ICYMI: William M. Treanor, Georgetown Law, on Why this "originalist" Supreme Court would have disappointed the Framers (Slate).  David H. Gans, Constitutional Accountability Center, on the “hollow shell” of “conservative originalism” (The Atlantic).  The battle over the dismissal of Michael Phillips by Collin College in Dallas reaches Loyola University, Chicago (Dallas Observer).  Fox News thinks FDR's Court-Packing Plan failed.  Not all agree.
  • Update: A copy of  “Reports of Cases: Determined in the General Court of Virginia, from 1730, to 1740; and 1768, to 1772” (1829) turned up in a donation box left at the Meyera E. Oberndorf Central Library in Virginia Beach, VA (Virginian Pilot).
Weekend Roundup is a weekly feature compiled by all the Legal History blogger.

Friday, July 22, 2022

Meyer on Connecticut's Anti-Originalist Constitution

Linda Ross Meyer, Quinnipiac University School of Law, has posted Connecticut's Anti-Originalist Constitutions and its Independent Courts, which is to appear in the Quinnipiac Law Review.  From the abstract:

This article provides: 1) an overview of Connecticut constitutional development, demonstrating the future-orientation of Connecticut’s 1818 and 1965 Constitutions, 2) an analysis of the way in which the “historical” aspects of Connecticut constitutional analysis have been interpreted, and misinterpreted, by the Connecticut courts, 3) a suggestion that one of the most unique features of Connecticut’s legal development is a tradition of legal independence from historical authority that encouraged locally-informed, common-law-style interpretive practices by its courts, since Connecticut never “received” the English common law and did not adopt the federal Bill of Rights until well after the “founding” period, 4) suggests that the Constitutions of 1818 and 1965 offer more appropriate temporal points of reference for Connecticut constitutional interpretation than the pre-1818 era, even were the Connecticut courts to take an originalist approach, in part because of the more broadly representative group of framers who were involved (which in 1965 included white women, black men, and many groups traditionally excluded from government, like Catholics, Irish, Italians, Jews, and Poles) and 5) counsels generally against using originalist approaches to state constitutional interpretation as unworkable and uncertain, unfair to litigants without special access to historical sources, and contrary to the common law approach instantiated in core legal principles of reasoned and principled argument, equal treatment, and stare decisis.
--Dan Ernst

Thursday, July 21, 2022

Dhondt on Gilissen and the Teaching of Legal History

Frederik Dhondt, Legal History Institute/Gustave Rolin Jaequemyns Institute of International Law, has posted John Gilissen and the Teaching of Legal History in Brussels, which appears in Teaching Legal History - History of Legal Teaching, ed. Lukasz Korporowicz (Acta Universitatis Lodziensis - Folia Iuridica 99 (2022), 19-50:

John Gilissen (1912–1988) was a high-profile legal academic at the Université libre de Bruxelles (°1834) and the Vrije Universiteit Brussel (°1969). Personal – albeit fragmentary – archival records deposited with these universities permit to reconstruct his teaching (both ex cathedra-courses for big groups and intensive tutorials), impressive global scientific network and insatiable scientific curiosity. Gilissen is the author of standard works on many aspects of domestic legal history (both public and private), and acquired renown as the secretary-general of the Société Jean Bodin pour l’histoire comparative des institutions. His influential position as a public prosecutor, law professor and legal historian generates a unique insider’s perspective on the confessional, linguistic and constitutional transformation of the country from World War One to the First Reform of the State. The current law curriculum at the Vrije Universiteit Brussel still bears marks of Gilissen’s comparative approach to the history of civil law and his interest in the contemporary relevance of institutional history. 
--Dan Ernst

Wednesday, July 20, 2022

Schorling on the Longer History of German Law

Felix Schorling, University of Munster, has posted A Deeper History of German Law:

Most textbooks introducing German law devote special attention to the corruption of law and
Sachsenspiegel (Wiki)

legal institutions that took place during the Nazi dictatorship. And then they describe the period in German legal history after the Second World War. This era involved dramatic developments that reoriented (West) German society – politics and law – towards democracy. The most remarkable achievement of the post-war period must be the promulgation in 1949 of the West German Basic Law or constitution. To underscore the new legal regime’s categorical break with Germany’s Nazi past, the Basic Law’s first Article declares: “Human dignity shall be inviolable.” But West Germany’s post-war legal order – eventually extended to all of a reunited Germany – also involved a significant continuation of well-established legal institutions, practices, and norms. In fact, that deeper dimension of German legal history extends back thousands of years. Some provisions of the law have roots in the time of the Roman Emperors. This essay aims to achieve the impossible: to give a brief overview of two millennia of German legal history, even considering the law of the Germanic peoples before there even was a Germany. In pursuing that grand, sweeping assignment, the essay will give special attention to law in the Medieval age (roughly from the fall of the Western Roman Empire to the fall of the Byzantine Empire).
--Dan Ernst

Tuesday, July 19, 2022

Bernstein's "Classified"

David E. Bernstein, George Mason Law, has published Classified: The Untold Story of Racial Classification in America (Simon & Schuster):

Americans are understandably squeamish about official racial and ethnic classifications. Nevertheless, they are ubiquitous in American life. Applying for a job, mortgage, university admission, citizenship, government contracts, and much more involves checking a box stating whether one is Black, White, Asian, Hispanic, or Native American.
While reviewing the surprising history of American racial classifications, Classified raises questions about the classifications’ coherence, logic, and fairness; for example:
• Should Pakistani, Chinese, and Filipino Americans be in the same category despite their obvious differences in culture, appearance, religion, and more? 
• Why does the government not allow Americans to classify themselves as bi- or multi-racial? 
• How did the government decide that a dark-complexioned, burka-wearing Muslim Yemini should be classified as generically white, but a blond-haired, blue-eyed immigrant from Spain should be classified as Hispanic and treated as a member of a minority group? 
• Why does the government require biomedical researchers to classify study participants by the official racial categories, when the classifications have no scientific basis?
In an increasingly diverse society with high rates of intergroup marriage, the American system of racial classification is getting even more arbitrary and absurd. With rising ethno-nationalism threatening democracy around the world, it’s also dangerous. Classified argues that the time has come to consider abolishing official racial classification and replace it with the separation of race and state.

--Dan Ernst

Monday, July 18, 2022

Watson's "Making of the Modern Corporation"

Susan Watson, who is Dean of the Business School and holds joint chairs in the Faculty of Law and Faculty of Business and Economics, at the University of Auckland, New Zealand, has published The Making of the Modern Company (Bloomsbury 2022).

This book adopts a historical perspective to highlight, and bring back into focus, the key features of the modern company. A central argument in the book is that legal personhood attaching to an entity containing a corporate fund seeded by shareholders is a direct and inevitable consequence of limited liability and the company's status as a separate legal entity from its shareholders. Management by a board subject to legal duties to the company as an entity that can exist in perpetuity facilitates a long term perspective by the board that can accommodate both shareholder and stakeholder interests. These defining characteristics differentiate the modern company from other business forms.

The Making of the Modern Company applies a 21st-century lens to the corporation through its history to identify turning points in its development. It sets out how key features emerged in the course of two separate developmental cycles in English corporate law: first with the English East India Company in the 17th century, and then with general incorporation statutes in the 2nd half of the 19th century. The book's historical perspective highlights that the key features are part of the 'secret sauce' of modern companies. Each cycle coincided with unparalleled periods of economic success associated with corporate activity

This book will be of interest to corporate law and governance academics, theorists and practitioners, those who study the company from related disciplines, and anyone who questions why uncertainty still exists about the structure of a legal form that has been described as 'amongst mankind's greatest inventions'
Order online at www.bloomsbury.com  – use the code GLR T5TUK for UK orders and GLR T5TUS for US orders to get 20% off. TOC after the jump.

–Dan Ernst

A Historian Watches Netflix's "History of Swear Words"

     Having spent many years researching and writing a book about the historical criminalization of speech, I was quite chuffed to learn of a Netflix series titled, "History of Swear Words" (HSW). Each episode of this six-part "documentary" explores the history and significance of a different swear word, and is decidedly NSFW--unless you are in the happy situation of working with swear words.

    Swearing experts featured in HSW include Melissa Mohr (historian and author of Holy Sh*t! A Brief History of Swearing); Kory Stamper, lexicographer; and Benjamin Bergen, cognitive scientist. Clips of these academics earnestly explaining the etymology of the f-word, or how a man's name also became a term of abuse, or why swearing increases one's pain tolerance, are chased with reaction footage from comedians such as DeRay Davis, London Hughes, and Sarah Silverman.

    The comedians and actors offer more than comic relief, however. As professional practitioners of swearing, they provide the praxis to our professors' theorizing. Some have become so proficient that they've become associated with one swear word in particular. Samuel L. Jackson comes to mind (you know the word); Isaiah Whitlock, Jr. demonstrates why he's known for another (and the principle that the meaning often depends upon the delivery). One is reminded of the narrator's observation about his father in "A Christmas Story": "He worked in profanity the way other artists might work in oils or clay. It was his true medium; a master."

    The meaning of swear words also often depends upon the power relations in which they're uttered, as we are reminded by film critic Elvis Mitchell and professor of feminist studies Mireille Miller-Davis. Mitchell makes an especially poignant argument about the difference between the way in which many people heard N.W.A.'s "F--- the Police" and what the group was actually expressing. And Miller-Davis observes that some targets of the b-word slur have been reclaiming the word by using it themselves, about themselves.

    It's not all semiotics and the philosophy of AAVE, however. There's a fun diversion into "half-swearing"--examples given include "darn" and "geez," but one can't help but think of "Let's Go Brandon." The "Dick" episode goes a little off-track when it forgets it's supposed to be about the word, and not, well. To illustrate the sheer malleability of the f-word, we get the F*** Family Tree, which includes numerous permutations, but alas, not my personal favorite.

    Tying it all together in inimitable fashion is the series host, Nicolas Cage. He greets the viewer in an impeccably tailored suit, lolling in an overstuffed armchair or sauntering to a decanter of Scotch in a Masterpiece Theater-style set. Cage clearly relishes the journey from the ridiculous (spinning out extended double-entendres) to the sublime (roaring the supreme swear word). That very same word, the series has told us, is cathartic, is pain-relieving, and is "a good protest word." For these reasons, perhaps it should be in everyone's vocabulary.

--Kristin A. Olbertson

Saturday, July 16, 2022

Weekend Roundup

  • The OAH is sponsoring the webinar Rethinking Our Historical Narrative: Native American and Indigenous History.  “We invite you to join us on Tuesday, July 19, at 6pm ET, as we look at recent events, such as this summer’s SCOTUS decision in Oklahoma v. Castro-Huerta, issues surrounding federal boarding schools, and the fight against the Indian Child Welfare Act”  Philip J. Deloria, Harvard University, hosts.  The guests are Brooke Bauer, University of Tennessee Knoxville, Maggie Blackhawk, New York University, Kasey Keeler, University of Wisconsin, and Derek Taira, University of Hawaii.  Register here.
  • A further report on that NSF-funded grant to digitize habeas corpus petitions at the University of Nebraska–Lincoln’s Digital Legal Research Lab, with principal investigators Katrina Jagodinsky and William G. Thomas.  This story stresses the participation of undergraduates at other colleges.
  •  In the June 2022 issue of the Journal of American History, "Richard Bell shows that kidnappers stalked free-soil cities in the early national United States with startlingly frequency and impunity, developing custom-designed techniques to lure away poorly educated boys and girls,” and "Joanna Cohen explores the claims for lost and destroyed property made by victims of the 1863 New York City draft riots."
  • The Historical Society of the New York Courts and Woodlawn Cemetery Conservancy’s recording of John Oller’s lecture on the early corporate bar in New York City and cops and robbers at the turn of the twentieth century, treated in his books, White Shoe (2019) and Rogues’ Gallery (2021), is now available as a podcast.
  • "Fisk University John Hope and Aurelia E. Franklin Library has received $1.6 million from the Mellon Foundation to support the implementation of a new digital platform for the Julius Rosenwald Fund Collection."  The accompanying picture alone is worth the click.)
  • Mabo @ 30: A notice of the National Library of Australia Exhibit.
  •  Bill Baird remembers the events that produced Eisenstadt v. Baird (BU Today).
  •  “The Smithsonian Institution’s National Museum of American History Will Host A Webinar To Assist Applicants in Applying for Federal Jobs.”  The 90-minute session It is “designed to teach applicants how to successfully complete a federal job application on July 26th at 4PM EST. Register here.  For questions, contact Alexandra M. Lord at lorda@si.edu or 202-633-0885.
  • More legal historians on Dobbs and its aftermath: Brad Snyder on why Brown is a faulty analogy for Dobbs (CNN).  Kate Masur on what slavery and antislavery in the 1850s can tells us about abortion and anti-abortion activism in the states today  (WaPo). Jack Rakove, Randy Barnett and others on how the Supreme Court is shaping the United States (BBC).  Sundry historians quoted in this story on how the Supreme Court uses history (CSM).  Buffalo Law weighs in (UBNow).

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

Friday, July 15, 2022

Novak on Hurst, Techonological Change, and Public Law

William Novak, University of Michigan Law School, has published Willard Hurst, Technological Change, and the Transformation of American Public Law in the Wisconsin Law Review Online, which he prepared for the Law, Legal Institutions, and Technological Change Conference held at the University of Wisconsin Law School last April.  It is something of a companion piece to his and BJ Ard’s foreword to Hurst’s previously unpublished book chapter “Technology and the Law: The Automobile,’ which appeared this year in the Wisconsin Law Review.  Writes Professor Novak:

Hurst viewed the law lectures that increasingly came to dominate the second half of his career not as the heart of his scholarly agenda, but as supplemental – hortatory and educational – what he later called distinctly “missionary” work, designed to acquaint a “wider academic public” with the “exciting subject matter” within the field of legal history. And while nineteenth-century “individualism” and “creative energy” and “enlarging markets” did figure influentially in some of those more general public lectures, there is a deeper and different—more hidden—Hurst lurking in the larger body of earlier work that speaks more directly to the dynamic themes of technological change, legal change, and the transformation of modern American institutions.
–Dan Ernst