Friday, October 30, 2020

Insider Trading: A Symposium on Chiarella v. United States

[We have the following announcement.  DRE.]

Insider Trading: Honoring the Past.  A Program Commemorating the 40th Anniversary of Chiarella v. United States.  Thursday, November 5th, 10:00 am - 12:00 pm Eastern Time

Sponsored by the NYU Pollack Center for Law & Business; Indiana University Maurer School of Law; and Securities and Exchange Commission Historical Society

This virtual program will explore the fascinating backstories of the Chiarella prosecution and the Supreme Court argument as well as the SEC's and DOJ's insider trading enforcement strategies in the wake of the Court's ruling.

Schedule and Panelists

10:00am - Welcome by Stephen Choi, Murray and Kathleen Bring Professor of Law, NYU School of Law, Co-Director Pollack Center for Law and Business
 
10:10-11:10am - Session I: The Chiarella Prosecution and Supreme Court Litigation

John S. Siffert, Co-Founding Partner, Lankler Siffert Wohl; Adjunct Professor—NYU School of Law (Assistant US Attorney in the SDNY 1974-1979, prosecuted the Chiarella case and argued the 2nd Circuit appeal)

John “Rusty” Wing, Partner, Lankler Siffert Wohl (Chief of the Securities and Business Fraud Unit for the SDNY’s U.S. Attorney’s Office 1971-1978)

Hon. Judge Jed S. Rakoff, U.S. District Judge SDNY (Chief of the Securities and Business Fraud Unit for the SDNY’s U.S. Attorney’s Office 1978-1980)

Stanley S. Arkin, founding member of Arkin Solbakken (represented Vincent Chiarella at his criminal trial, 2nd Circuit appeal, and argument before the Supreme Court)

Panel Moderator: Donna M. Nagy, C. Ben Dutton Professor of Law, Indiana University Maurer School of Law

11:10am-12:00pm Session II: The SEC and DOJ’s Response to the Supreme Court’s Chiarella Decision

Donald C. Langevoort, Thomas Aquinas Reynolds Professor of Law, Georgetown University Law Center (SEC Special Counsel, Office of General Counsel, 1978-1981)

Lee S. Richards III, Co-Founding Partner, Richards Kibbe & Orbe, (Assistant US Attorney in the SDNY 1977-1983, prosecuted US v. Newman based on the misappropriation theory advanced in, but left undecided by, the Court’s Chiarella ruling)

Hon. Judge Jed S. Rakoff, U.S. District Judge SDNY (SDNY Fraud Unit Chief during the Newman investigation, later served as defense counsel in Carpenter v. United States)

Panel Moderator: Robert B. Thompson, Peter P. Weidenbruch, Jr. Professor of Business Law Georgetown University Law Center

Conference Organizers:

Stephen Choi, Murray and Kathleen Bring Professor of Law, NYU School of Law, Co-Director Pollack Center for Law and Business

Donna M. Nagy, C. Ben Dutton Professor of Law, Indiana University Maurer School of Law

Jane Cobb, Executive Director, SEC Historical Society

Campbell on Natural Rights, Positive Rights and the Second Amendment

Jud Campbell, University of Richmond School of Law, has posted Natural Rights, Positive Rights, and the Right to Keep and Bear Arms, which appears in Law and Contemporary Problems 32 (2020): 31

The first judicial opinions interpreting the right to bear arms embraced vastly divergent views of the right, leading scholars to perceive these decisions as being in disarray. This article argues that these conflicts reflect exactly the sorts of disagreements that one would expect given that Americans viewed the right to bear arms as a natural right and as a positive right. Indeed, the first right-to-bear-arms decisions exemplified tensions that emerged when judges confronted claims about natural rights and positive rights in a changing social and legal landscape. As a natural right, the right to carry firearms could only be limited in promotion of the public good, which was quintessentially a question of legislative judgment. Yet emergent attitudes about judicial review counseled against absolute deference to legislatures. As a positive right, the right to bear arms offered more determinate legal protection. But its tradition-based content did not specify how to resolve novel problems, and entrenched norms posited that judges could only apply existing law — not make it up. Enforcing natural rights and positive rights in novel circumstances thus required judges to adopt rules that were over-inclusive, under-inclusive, or a combination of both. And that is precisely what one sees in the first right-to-bear-arms cases. The article concludes with a discussion of how this history bears on contemporary debates about the Second Amendment.

--Dan Ernst

African History and Legal History

 [We have the following announcement on an online event, sponsored by the Max Planck Institute for European Legal History.  DRE]

On November 5th, the "Global Legal History on the Ground" project will host an online event on court cases in the writing of African History and Legal History.

Time: 10 am - Atlanta; 12 pm - Brasília; 4 pm - Frankfurt am Main and Luanda.  Registration per e-mail: diaspaes@rg.mpg.de

 

Mariana Dias Paes (Max Planck Institute for European Legal History) - Introdução e apresentação das integrantes do projeto

Fernanda Thomaz (Universidade Federal de Juiz de Fora) - Fontes judiciais e conflitos de formas normativas na história de Moçambique

Mariana Candido (Emory University) - As mulheres na documentação do Tribunal da Comarca de Benguela: novas fontes e questões para a história de Angola no século XIX

José Évora (Arquivo Nacional de Cabo Verde) - O acervo documental do ANCV e o desafio de uma história vista a partir do rés-do-chão: pistas para uma história do direito cabo-verdiano

This event will be held in Portuguese, but we will organize other talks in English and Spanish during 2021.  For more information on the project, [here].

Thursday, October 29, 2020

Stern on Proximate Causation in Legal Historiography

Simon Stern. University of Toronto Faculty of Law, has posted Proximate Causation in Legal Historiography, which is forthcoming in History and Theory (2020):

The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes.

To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine, and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely.

To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play a more attenuated role, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography, and to question their persuasive force.

--Dan Ernst

McSweeney, Ello and O'Brien on old universities

 Thomas J. McSweeney, Katharine Ello, and Elsbeth O'Brien (all of William and Mary) have published "A University in 1693: New Light on William & Mary's Claim to the Title "Oldest University in the United States," William & Mary Law Review (Oct.15, 2020). Here's the opening:

William & Mary has traditionally dated its transformation from a college into a university to a set of reforms of December 4, 1779.On that date, Thomas Jefferson and his fellow members of the Board of Visitors reorganized William & Mary, eliminating the grammar school and the two chairs in divinity and creating chairs in law, modern languages, and medicine. Five days after the reforms were adopted, a William & Mary student wrote that “William & Mary has undergone a very considerable Revolution; the Visitors met on the 4th Instant and form’d it into a University....” Just over three years later, when Jefferson received an honorary doctorate in civil law from William & Mary, his Latin diploma stated that it was granted by the “president and professors of the university or College” (universitatis seu collegii) of William & Mary in Virginia. In the late 1770s and early 1780s, there certainly seems to have been a campaign to broadcast William & Mary’s status as a university, and William & Mary grounds its claim to be the oldest university in the United States in that historical moment. There is a strong argument to be made, however, that William & Mary became a university long before the reforms of 1779. In fact, it was granted the status of a university in its royal charter of February 8, 1693.

 Few scholars appear to have noticed the relevant language in the charter. There are good reasons for that. The term used in the charter is not one that is familiar to us today. The drafters did not use the word “university.” Instead, they used a technical term for a university that developed in the Middle Ages, one that had gone out of regular use in the British Isles even by the seventeenth century. Moreover, it only really becomes clear that William & Mary was granted the status of a university in the Latin version of the charter. In the English version, the terminology is hidden behind an overly literal translation. In the English version of the charter, the one that is read every year at William & Mary’s Charter Day celebration, William III and Mary II declare that they are granting their license “to make, found, and establish a certain Place of universal Study, or perpetual College of Divinity, Philosophy, Languages, and other good Arts and Sciences.” The key words are “place of universal study.” In the English, they do not look significant. But they are a translation of a very significant phrase that appears in the Latin charter: studium generale.

Further information is available here.

--Mitra Sharafi

Wednesday, October 28, 2020

The Skariatin Code. Legal History Research on Imperial Russia

„By order of the Highest Manifesto, promulgated on May 15, the case against the former Kazan governor Skariatin, processed by the Criminal Cassation Department of the Governing Senate, has been closed and will not be heard.“

At first sight, this sober piece of news may not strike you as very important or exciting. But when I first came across these lines in the reading room of the Russian Academy of Sciences, I was moved and relieved. It must have been May 2012. It was an odd and rather special moment during the research that went into my book The Lawful Empire (Cambridge 2019). Let me explain why.

The short note published somewhere towards the end of the Novoe Vremia (New Time) newspaper on July 13, 1883, was not an eye-catcher. I had almost moved on to the next page, and I had to read it several times before I believed it. I had spent the last few weeks going through every available newspaper published in St. Petersburg in the first half of 1883. What on earth had happened to governor Skariatin? Between 1879 and early 1883, the fate of this governor – revered by some, despised by others – had kept large parts of the Russian press occupied. But something must have happened in 1883 that made his name disappear from the headlines. It was almost like he had vanished into thin air.

Nikolai Iakovlevich Skariatin was the protagonist and anti-hero of my book’s final chapter. Thoroughly unlikeable in many respects (not least because of his racism, penchant for violence, and disrespect for the law), in a bizarre way, he had also grown on me. Perhaps it was the fact that I had spent so much time piecing together the trajectory and impact of this man, whose life had gone almost completely unnoticed by biographers and historians. As the governor of Kazan Province from 1866 to 1880, he was the kind of mid-level imperial administrator who did not leave many traces. Back in November 2011, I had given a talk in DC (and shortly afterwards, another one in Berlin) on Skariatin’s inglorious role in the Tatar riots of 1878, and while I had been able to show how this over-ambitious governor had been sacked and put on trial for using excessive violence when putting down an uprising, I had not been able to answer questions on what happened to him in the end. It was vexing.

 

Playing detective

In many historical studies, we are now concerned with offering new perspectives on established material. We develop "mental maps" or use transregional or global history approaches, and we follow the spatial, performative, or emotional turns (among a dizzying array of other turns) to gain new insights from our material. And there’s nothing wrong with this. Most of the time, though, we already know what happened. It’s more a question of new interpretations and challenging, or deconstructing, old narratives. In legal history, though, the situation is different. Once you move beyond key historical cases that caused public outcry or major legal and political debate, you often enter the unknown. Dozens of legal cases in my research on Russian imperial history had not been addressed by other researchers (also evidenced by the archival registers in Crimea and Kazan, which showed that many files I ordered were completely untouched). It would then take me weeks or even months to gather all the details (as the handwritten files for ordinary criminal and civil cases could be hundreds of pages long). I remember moments at the Kazan archive when I suddenly felt like Tom Hanks in the Da Vinci Code, as yet another detail had just emerged from a new file and given things a completely new twist. Historical research can be surprisingly suspenseful. It certainly was in the Skariatin case. 


Prophets and pardons

The case of the governor was also a prime example of a journey into the unknown. Admittedly, bits and pieces of the story had been told before. A highly authoritarian governor had subjected several Muslim Tatar villages to severe corporal punishment in reaction to their alleged rebellion; in what almost sounded like a caricature of a Russian conservative, different sources confirmed that he had moved through rows of Tatars, tied down and birched by his soldiers, and with every lash he reportedly shouted things like “This is for Muhammad!” and “This is for the Qur’an!” To make matters worse, some of the victims were even taken to court for resisting the authorities. What had received far less, if any, attention in the literature was the second part of the story: that about two years after the incident, complaints about Skariatin’s cruelty had reached the highest level of the empire’s judiciary, which proceeded to dismiss the governor and press criminal charges against him. In a protracted, two-year judicial process he was eventually put under house arrest and scheduled to be tried by a jury. By this time, a virtual war was raging in the Russian press on Skariatin's alleged guilt, on the merits of the jury courts, and on appropriate policies towards Muslim "fanatics". 



While it had taken me over a year to make sense of all the details belonging to the second part of the Skariatin story (his gradual fall from grace), I still had no answer to the question of what happened to him in the end. This is when I discovered the lines mentioned at the beginning of this blog post. The simple truth was that Skariatin had been pardoned by the tsar, and so there was not much point in the press continuing the debate about his virtues and vices. But let’s be clear about this. When you look at the actual manifesto mentioned by Novoe Vremia, you will not find any names in it. The category of crime the former governor was accused of, “serious beatings”, was among those selected for broad pardons on the occasion of the coronation of Alexander III. In other words, the crime was pardoned, not the person.

In a way, and given the extraordinary circumstances and cultural implications of Skariatin's brutal actions, this was a soundless and somewhat unsatisfactory end to the final chapter. And yet, it also reflected the ambiguities and unpredictability of legal culture in reform-era Russia. 

-- Stefan Kirmse

Socio-Legal Studies Job at Ryerson

 [We share the following job posting.]

The Department of Criminology at Ryerson University (Toronto, Canada) welcomes applications for a tenured or tenure track position at the rank of Assistant or Associate Professor effective 1 July 2021.

 Preference will be given to candidates who have both research expertise and lived experience in the realities of colonialism, systemic racism, or other forms of discrimination. The area of focus is Socio-Legal Studies,  which may include, but is not limited to, research with communities disproportionately impacted by policing and state violence; the over-representation of Black and Indigenous peoples in criminal justice and carceral systems; the ongoing effects of settler colonialism and racial capitalism; the role of Islamophobia, anti-Asian, and anti-Latinx racism in various socio-legal contexts; and activist, policy, and legislative responses to these issues within Canada or at international levels.

 Ryerson Criminology is an interdisciplinary department with faculty backgrounds in sociology, history, women’s studies, law, political science, geography, social and political thought, and criminology.

 Applications must be submitted on Ryerson’s ‘Faculty Recruitment Portal’ by the end of day on Monday November 16, 2020.

 More information is available here.

 Here is the Ryerson Criminology website.

--Mitra Sharafi

Tuesday, October 27, 2020

"Democracy Contested"

[We have the following announcement.  DRE]

Democracy Contested? A virtual event of Cornell University to be held Thursday, October 29, 2020 at 7:00pm to 8:00pm.

As the U.S. Presidential Election nears, the nation’s courts, political systems and media are preparing for the possibility of a contested outcome. A panel of Cornell faculty experts will examine the history of contested elections in the United States and worldwide, while also discussing how disinformation and fake news reports might influence the election result and voter participation.

Moderator:
David Bateman, Associate Professor, Government

Panelists:

Kenneth Roberts, Richard J. Schwartz Professor, Government
Alexandra Cirone, Assistant Professor, Government
Julilly Kohler-Hausmann, Associate Professor, History

Phillips and Yoo on Originalism and Impeachment

James Cleith Phillips, Chapman University, The Dale E. Fowler School of Law, and John Yoo, University of California at Berkeley School of Law have posted Your Fired: The Original Meaning of Presidential Impeachment, which is forthcoming in the Southern California Law Review 94 (2021):

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of presidential impeachment are again salient. Unlike other constitutional provisions, the Impeachment Clause has generated neither much historical practice nor case law with regard to the removal of a President. The Supreme Court has deemed impeachment the ultimate political question. Thus, the original meaning takes on great weight. Further, previous scholarship has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. This article is the first to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law. Not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established legal term of art in Great Britain. The article then applies these findings to the impeachment of President Trump, provides an in-depth analysis of the proceeding in light of the Constitution’s original meaning, and critiques arguments made on both sides.
–Dan Ernst.  H/t: Legal Theory Blog

A Symposium on Sullivan's "Church State Corporation"

The symposium Secularism, religion, and the public sphere has recently concluded over at The Immanent Frame, the blog of the Social Science Research Council.  It is devoted to Church State Corporation: Construing Religion in US Law (University of Chicago Press, 2020), by Winnifred Fallers Sullivan, Indian University-Bloomington.

First, here is the publisher’s copy and TOC for Professor Sullivan’s book:

Church and state: a simple phrase that reflects one of the most famous and fraught relationships in the history of the United States. But what exactly is “the church,” and how is it understood in US law today? In Church State Corporation, religion and law scholar Winnifred Fallers Sullivan uncovers the deeply ambiguous and often unacknowledged ways in which Christian theology remains alive and at work in the American legal imagination.

Through readings of the opinions of the US Supreme Court and other legal texts, Sullivan shows how “the church” as a religious collective is granted special privilege in US law. In-depth analyses of Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby reveal that the law tends to honor the religious rights of the group—whether in the form of a church, as in Hosanna-Tabor, or in corporate form, as in Hobby Lobby—over the rights of the individual, offering corporate religious entities an autonomy denied to their respective members. In discussing the various communities that construct the “church-shaped space” in American law, Sullivan also delves into disputes over church property, the legal exploitation of the black church in the criminal justice system, and the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Brimming with insight, Church State Corporation provocatively challenges our most basic beliefs about the ties between religion and law in ostensibly secular democracies.

Here’s the TOC:

Introduction. The Definite Article
Chapter 1. The Church Makes an Appearance: Hosanna-Tabor v. EEOC
Chapter 2. “The Mother of Religion”: The Church Property Cases
Chapter 3. Hobby Lobby: The Church, the State, and the Corporation
Chapter 4. The Body of Christ in Blackface
Conclusion. The Church-in-law Otherwise
 
And here is the SSRC symposium:

Introduction:  Mona Oraby (Amherst)

Leora Batnitzky (Princeton):  An American Political Theology
?
Samuel Moyn (Yale): Jurisdictions of the Church

Nandini Chatterjee (Univ. of Exeter):  Imagining Community
Linda Greenhouse (Yale and the New York Times):  Why Not Just Abolish the Religion Clauses?
Julian Rivers (Univ. of Bristol Law): "... by law established": A transatlantic dialogue

--Dan Ernst.  H/t: FK

Monday, October 26, 2020

Goldsworthy on History of British Constitutional Theory

Jeffrey Denys Goldsworthy, Monash University Faculty of Law, has posted A Brief History of Constitutional Theory in Britain, which is forthcoming in The Cambridge Constitutional History of the United Kingdom (Cambridge UP):

This paper surveys the development of constitutional theory in England, and later Britain, from the Twelfth Century until today. It shows how contending theories attempted to reconcile the need for strong central authority to maintain order and justice, with the need to control that authority - either through law or political struggle - to prevent its misuse. It describes a gradual transition from theories of monarchical rule to those of mixed government and finally parliamentary democracy, and how they understood the place or role of the Church, the law, “the community” and “the people”.
--Dan Ernst

Crenshaw, Foner and Gates Discuss Reconstruction

From the Columbia News:

On October 20, 2020, leading scholars examined the intersections of 19th-century history with contemporary politics, and offered visions for America’s future, during “Why Reconstruction Matters.” The online event was moderated by Columbia President Lee C. Bollinger and introduced by Vice Provost and University Librarian Ann Thornton. Nearly 700 people viewed the panel, which was cosponsored by the World Leaders Forum and Columbia Libraries.

The panelists—Kimberlé W. Crenshaw, professor at Columbia Law School, Eric Foner, emeritus professor of history, and Henry Louis Gates, Jr., filmmaker and Harvard professor—have each written extensively about the period of Reconstruction, and were all featured in a recent PBS documentary series on the topic.

--Dan Ernst

Keller on Common-Law Qualified and Absolute Immunity

 Scott A. Keller, Baker Botts LLP, has posted Qualified and Absolute Immunity at Common Law, which is forthcoming in the Stanford Law Review:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But caselaw and scholarship has paid surprisingly little attention to how qualified immunity could be reformed — short of eliminating the doctrine altogether. While there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under 19th century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This article therefore provides the first comprehensive review of the 19th century common law on government officer immunities. In particular, it canvasses the four 19th century tort treatises that the Supreme Court consults in assessing officer immunity at common law: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, 19th century decisions.

These historical sources overwhelmingly refute the modern prevailing view among commentators about one critical aspect of qualified immunity: The 19th century common law did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties — like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the 19th century common law: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden of proof.

These three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that will sufficiently protect the separation of powers without needing the “clearly established law” test — which pervasively denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial. In sum, restoring the 19th century common law on state officer immunities could address many modern problems with qualified immunity.
--Dan Ernst

Harrison on the Delegation Problem

John C. Harrison, University of Virginia School of Law, has posted Executive Discretion in Administering the Government's Rights and the Delegation Problem:

Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to today, executive officials have exercised substantial policy discretion in managing the government's own resources. That practice is consistent with the text and structure of the Constitution. Administering the government's resources, and making policy judgments in doing so, is at the core of carrying the law into execution. The executive itself does not have power to create programs that employ federal resources such as federal funds, but when Congress creates such a program, it may leave many important choices to the executive. At most, the Constitution requires that Congress provide an intelligible principle to guide that discretion. The non-delegation principle concerning regulation of private conduct may be more demanding than that, but the exercise of the government's own rights is a distinct category of executive activity. The practical scope of this principle is substantial. Federal spending today is a major tool through which Congress affects behavior. Like spending and contracting, federal regulation through licensing takes the form of the administration of the government's resources. Licensing of broadcasting, for example, rests on the principle that the airwaves are public and not private property, and that private people may use that resource only on terms the government sets. Licensing schemes put the government in the position of an owner, able to give licenses that permit conduct that otherwise would violate the owner's rights. Congress therefore may give executive officials substantial discretion when it creates a licensing system. The important question is the extent of Congress's power to put the government in the position of an owner. Two well-known early examples of delegation to the executive, the Indian Commerce Act of 1790, and the regulation of steamboat safety, took the form of licensing. The historical evidence does not indicate that proponents of those systems justified delegation on the grounds suggested here. It does suggest that steamboat licensing was understood to be based on federal control of the public right of navigation of interstate waterways. The executive function of administering the government's resources is a distinct category of executive activity from the standpoint of constitutional structure, and the principles that apply to delegation in other contexts need not apply in that context.

--Dan Ernst

Saturday, October 24, 2020

Weekend Roundup

  • The Wall Street Journal interviewed Laura Phillips Sawyer (University of Georgia School of Law) for this piece on the Justice Department's pursuit of Google over its allegedly anti-competitive conduct. 
  • Anders Walker reviews Walter Johnson’s The Broken Heart of America: St. Louis and the Violent History of the United States (2020) on Jotwell. 
  • Ellen DuBois speaks on her book on Suffrage: Women's Long Battle for the Vote in the Washington History Seminar on Monday, October 26 at 4:00 pm ET.  Register for the webinar here or watch on live our Facebook Page.
  • Just published: Holmes Reads Holmes: Reflections on the Real-Life Links Between the Jurist and the Detective, ed. Ross E. Davies and M. H. Hoeflich (Lawbook Exchange, 2020).
  • ICYMI: Alexander Zhang, a J.D./Ph.D. student in law and history at Yale, on "The Forgotten Third Amendment [that] Could Give Pandemic-Struck America a Way Forward" (The Atlantic).  50 historic moments in the U.S. Supreme Court (Stacker via the Buffalo News).  Jerold Auerbach recalls--not happily--his Development of Legal Institutions class at Columbia Law School.  For more on Julius Goebel, this.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, October 23, 2020

History Job at Harvard Business School

 [We share the following job posting. Note the deadline that is fast approaching: Nov.2, 2020.]

 Harvard Business School is seeking candidates with a Ph.D. in history for a tenure-track position in the Business, Government, and the International Economy (BGIE) unit.  While candidates may study any geographic region or time period, we are especially looking for scholars whose research focuses on one or more of the following areas: business-government relations, economic development, democratic governance, international institutions and/or international relations, law, political economy, public policy, and trade.  Candidates may come directly from Ph.D. programs or from the faculties of other universities.  The appointment will begin on July 1, 2021.

Further information is available here.

 --Mitra Sharafi

New Digital Exhibits at U Minn Law Library

 [We have the following announcement.  DRE]

The University of Minnesota Law Library has released three new digital exhibits. "Law and Struggle for Racial Justice: Selected Material from the Riesenfeld Rare Books Center," continues a series of initiatives and conversations at the Law School centered around racial justice. "Noted and Notable: Treasures of the Riesenfeld Rare Books Research Center," and "Böcker Har Sina Öden' (Books Have Their Destinies): Treasures of the Swedish Law Collection," based on 2020 spring exhibits, highlight special collections treasures chosen in particular for their value as historical artifacts.

New FJC Essay: The Executive Branch and the Courts

The Federal Judicial Center is out with a new essay The Executive Branch and the Courts, with the following sections:

The Executive Role in the Appointment of Federal Judges The Executive Role in Judicial Administration
Executive Legal Officers
Judicial Review of Executive Agency Actions
Judicial Review of Executive Orders
Executive Enforcement of Judicial Orders 

--Dan Ernst

English Manuscript Law Reports: A Query from Sir John Baker

[We have the following query from Professor Sir John Baker.  H/t: Michael Widener.  DRE.]

English Manuscript Law Reports

Over the course of my professional life as a legal historian, I have become aware both of the immense importance of unpublished law reports in the history of the common law and of the difficulty in finding them for want of adequate catalogues. The Selden Society has commissioned a descriptive catalogue, and work is under way to assemble and edit the descriptions of the thousand or so items of which we are currently aware. I have compiled lists over the years for my own use, and, since they include volumes found in librarians’ cupboards and on uncatalogued shelves, I am sure there must be other manuscripts which have not come to my attention in this rather random way. It would be a great service to scholarship if librarians could draw our attention to any manuscripts which might be included and which are not noticed in my English Legal Manuscripts in the U.S.A. The catalogue will cover the period 1500 to 1800 and will be limited to original reports of legal arguments, excluding trials, precedents of pleading, and commonplace books derived solely from printed sources. In cases of doubt, I will be glad to help with identification. Please send any information which might be helpful, including questions, to me at jhb16@cam.ac.uk.

John Baker
(Professor Sir John Baker, Cambridge)

Thursday, October 22, 2020

Register for ASLH 2020

[We have the following announcement from the American Society for Legal History.  DRE.]

REGISTER FOR OUR ANNUAL CONFERENCE

Dear ASLH members,

We invite you to register here for the 2020 ASLH annual conference, to be held November 13-14.  The online program features a carefully curated selection of exciting panels on the legal history of colonialism, slavery and abolition, immigration, and other topics. On Friday afternoon a group of editors and other experts will discuss book publishing in the Covid era. To wrap things up on Saturday afternoon, President Lauren Benton will deliver her Presidential Address and announce ASLH prize winners. You can find the full program here.

Registration is free for all ASLH members, and you must be a member to attend. The ASLH warmly welcomes students, who can become members for as little as $10.

Join or renew your ASLH membership here.

We hope you will join us for what promises to be a fantastic – if unusual – gathering of the ASLH!

Sincerely,

Lauren Benton, ASLH President
Anne Twitty, ASLH Secretary
Kristin Collins, ASLH Program Co-chair
Ari Bryen, ASLH Program Co-chair

An Archive's Tale. Law and Empire in Tsarist Russia

The story behind my research on law and legal practice in late imperial Russia is also a story about archives. For me, as someone who had mainly worked with anthropological methods before, the extensive archival research that went into "The Lawful Empire" (for details, click here) was a major change, a change that greatly enhanced my respect for historical work due to the finite nature of sources. In the past, when in doubt, I had returned to the field for more participant observation or focus group interviews and I could always be sure that this would lead to fascinating new data. With archival research, life turned out to be a lot less predictable. Sometimes you discover that one document that (you think) will change the world, only to realize later that its contribution is a lot more modest; and sometimes, you simply don’t find the documents you need. Or you find them with considerable delay, as I will discuss next week in a blog entry on my book’s final chapter.


Research between Kazan, Crimea, and St. Petersburg

What made matters more challenging in my recent project, which documents legal reform and court practice on two of the Russian Empire’s interior peripheries, Crimea and the Volga-Kama region, is that the relevant archives are geographically scattered across the vast Eurasian landmass. The bulk of the research was carried out at the National Archive of the Republic of Tatarstan (NART) in Kazan, about 600km east of Moscow, and at the State Archive of the Autonomous Republic of Crimea (GAARK) in Simferopol on the Black Sea peninsula, which during my archival research (2010-2013) was not only de iure but also de facto part of Ukraine. Trips to the two locations were not easily combined; and as it turned out, whenever I entered the field, I stayed in either Kazan or Crimea, never in both. However, as the years passed and the project’s focus became more refined, it also became clear that this regional, bottom-up perspective, as rewarding and innovative as it was, had to be complemented by work at the Russian State Historical Archive (RGIA) in St Petersburg, where the ministry of justice and other key institutions held their records. The point was not so much that this central archive offered a top-down perspective but that its documentation also contained many local voices (either because locals had written to St. Petersburg or because central investigators had conducted enquiries in the regions and taken their results back with them).

Doing a project in three locations that are thousands of kilometers apart from each other is logistically difficult (and expensive), but also very satisfying because every location and every archive comes with its own challenges and rewards (not to mention quirks). The same is true for the specialized libraries that I used for their collections of newspapers, journals, and other publications, especially the Slavonic Library in Helsinki (priceless because many publications from imperial Russia, to which Finland belonged, are on the shelves and thus easily accessible) and the library of the Russian Academy of Sciences in St. Petersburg (with far easier work conditions than the Russian State Library). Last but not least, the library of Kazan University with its extensive collection of imperial newspapers and its department of ‘rare books’ proved to be incredibly rich. That some of its newspapers were part of heavy folders that no library assistant felt comfortable to lift led me into the basement of the Kazan library stacks, and left alone among those endless shelves of dusty old papers, you could not help but feel excited (I’m an explorer!) and appalled (how on earth did my life end up in this basement?) at the same time. In archives, you quite literally dig deep.


I should add that I have the terrible habit of arriving unannounced, the first reason being that local archives, libraries, and museums tend not to send you away if you are already there (as opposed to telling you by email that they have nothing of interest for your project, which is not always true), and the second and probably more crucial reason being that I am simply not organized enough for doing things differently. I avoid travelling in July and August – when many Eurasian archives are closed – but other than that, I tend to just go and play things by ear. 

When I first arrived at the Crimean archive in April 2010, I found the front door locked. An ominous sign told me of a "technical break until further notice". As it turned out, they were rearranging their collections inside, an understandable and necessary endeavor. The following six weeks were still incredibly productive because once I had got hold of an employee and explained the purpose of my stay, they were extremely welcoming and had no objections to me being the only person in the reading room while they were going through their files. In fact, the person in charge of this room, a Crimean Tatar, and I enjoyed countless conversations over the next few weeks, sometimes jointly brooding over old files, sometimes discussing aspects of local history. That the Crimean archive always closed at 1.30pm on Fridays for the entire weekend was a blessing in disguise, for it enabled, in fact encouraged, me to explore this small peninsula and its geography on foot in considerable detail. When the Karaite prayer houses in Evpatoriia on the peninsula’s western shore, the khan’s palace at Bakhchisaray, or the pass across the coastal mountains and the small vineyards and orchards between Alupka and Yalta, exalted by so many nineteenth-century writers, suddenly become alive, you begin to develop a very different relationship with your written sources.

 



Handwriting, photography, and being back in school

Back at the archive (in both Crimea and Kazan), nineteenth-century handwriting proved to be a particular headache. It was rarely an issue when local litigants or court officials wrote their requests or reports to institutions higher up because they invariably wanted to make a good impression. The response from the center was often far less ceremonious and more difficult to make sense of; it tended to look like scrap paper with indistinct scribbles on them. In both regional archives I therefore spent many hours with the local archivists comparing and identifying individual letters and words, gradually developing a more trained eye for reading such correspondence. I certainly learned never to underestimate how much work you spend on deciphering, rather than just reading files.

Another lesson was always to expect the unexpected. Once the person usually in charge of the Crimean reading room had other business to attend to, and so someone from the administration replaced her for a day. It was a day to remember. “YOU UNPLUG THAT LAPTOP OF YOURS RIGHT NOW, DO YOU HEAR ME?!” was the new supervisor’s way of introducing herself to me. Her face was trembling with anger while I was still trying to work out what the issue was. Then she turned at everyone else in the room. “AND YOU LOT AS WELL! PULL THOSE PLUGS OUT! NOW! DO YOU HAVE ANY IDEA HOW MUCH WE PAY FOR ELECTRICITY?” Actually, we did, as many archives charge you for the use of laptops in Russia and Ukraine. The Crimean archive didn’t. But rather than kindly ask us to make contributions, the administration decided to go for a good old verbal thrashing (which continued for the rest of the day). At 35 years of age, I felt odd to sit there again like a schoolboy. Still, I kept telling myself that at least it wasn’t as tough as Saratov on the Volga River. A colleague of mine had done research there in the middle of February in what turned out to be a tiny archive with very few seats, which forced her to wait in line every day at 7am in minus 20 degrees Celsius to secure a desk. That’s real dedication! And perhaps a good reason for focusing on Russian ties with Africa or Latin America in the next project

A final note on the conditions that archives offer when it comes to photography. Given the logistical challenges outlined earlier, photography played a crucial role in my project. While the first trips to the different locations were more exploratory and focused on getting an overview of the kinds of sources that existed, follow-up trips tended to be far shorter and more focused. This was facilitated by the fact that both the Crimean and the Kazan archives allowed you to take as many pictures of archival documents as necessary (provided you told them which ones you needed and paid a small fee). From one trip I returned with 1,200 pictures; from another with 800. It was an arrangement that helped foreign researchers, who are more dependent on the visual material you can gather in shorter periods of time. Things were far more regulated (and expensive!) at the central archive in St. Petersburg, where taking time-consuming notes turned out to be the only feasible option. Unfortunately, by now, local rules have also become stricter, with high fees and new rules introduced for photography in Crimea and Kazan. I am not sure that these new rules protect the historical material any better; they certainly impose constraints on researchers who are not constantly in the area. 

On the whole, then, my research in "The Lawful Empire" not only offers a snapshot of life and legal practice in late nineteenth-century Crimea and Kazan, but it is itself a snapshot of how historical research was possible in these two regions roughly between 2009 and 2015.

-- Stefan Kirmse 


Columbia Legal History Workshop

[We have the following schedule for the Columbia Law School’s Legal History Workshop.  DRE]

Fall 2020

October 8 at 6:30-7:30pm EST • "Becoming Free, Becoming Black: A Talk by Ariela Gross with Kellen Heniford," sponsored by the Center for the Study of Ethnicity and Race at Columbia University.

October 28 at 6:30pm EST • Workshop with Brittany Farr (Penn, Law): "Breach by Violence: Sharecropping Contracts in the Post-Slavery South."

November 18 at 6:30pm EST • Workshop with Nurfadzilah Yahaya (National University of Singapore, History): "Shifting Sands: British Imperial Politics of Land Reclamation in the Mid-Twentieth Century."

December 9 at 6:30pm EST • Workshop with Stephanie Jones-Rogers (Berkeley, History): "'She had... a Womb Subjected to Bondage': The Afro-Atlantic Origins of British Colonial Descent Law."

Spring 2021

January 27 at 6:30pm EST • Workshop with Anna di Robilant (Boston, Law): Selections from The Making of Modern Property: Reinventing Roman Law in Nineteenth Century Europe and Its Periphery (Cambridge University Press, 2021).

February 24 at 6:30pm EST • Workshop with Thomas McSweeney (William & Mary, Law): "Writing the Common Law in Latin."

Wednesday, October 21, 2020

Aziz on Race and Middle Eastern Americans

Sahar F. Aziz, Rutgers Law School, has posted Legally White, Socially Brown: Racialization of Middle Eastern Americans, which is forthcoming in the Routledge Handbook on Islam and Race, ed. Zain Abdullah:

What are you – Black, White, Mexican? This is a frequent question posed to people of Middle Eastern and North African ancestry. For new immigrants, the question is confounding because these categories are not in their lexicon on identity. Instead, a person’s family name, tribe, neighborhood in a city, village, or clan situate them in their home country’s social hierarchies.

In America, however, they soon discover that race is the master category for identity formation. It does not take long for new immigrants from the Middle East and North Africa to learn that being White presents privilege, opportunity, and dignity, whereas being Black leads to a litany of subjugation, indignities, and inequities in the United States. Whatever confusion they may have about how to respond to the race question, their first application for work or school dictates the answer: “White” includes persons having origins in Europe, the Middle East, or North Africa. But their legal race does not always mirror their social, lived race.
--Dan Ernst

Jarwala on Racially Restrictice Covenants and the Changed Conditions Doctrine

Alisha Jarwala, a 2020 graduate of the Harvard Law School, has posted The More Things Change: Hundley v. Gorewitz and 'Change of Neighborhood' in the NAACP’s Restrictive Covenant Cases, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review 55 (2020):

Racially restrictive covenants flourished throughout the United States in the early twentieth century. These private agreements prohibited the sale or rental of specific parcels of land to non-white individuals, with the goal of maintaining residential segregation. Today, the primary case associated with restrictive covenants is Shelley v. Kraemer, in which the Supreme Court used the state action doctrine to strike down restrictive covenants in 1948.

However, there was a road not taken. The NAACP challenged hundreds of restrictive covenants and lost the majority of these cases, with a notable exception in 1941: Hundley v. Gorewitz. In Hundley, a federal court struck down a racially restrictive covenant in Washington, D.C., under a different theory: the “change of neighborhood” doctrine. This doctrine allows a court in equity to declare a restrictive covenant unenforceable if there has been such a radical change in the neighborhood that the covenant’s original purpose has been defeated. NAACP lawyer Charles Hamilton Houston was able to persuade the D.C. Circuit that a racially restrictive covenant was unenforceable if a neighborhood was already becoming predominantly Black, and the Hundleys kept their home.

This Note seeks to provide a legal historical account of Hundley v. Gorewitz and the change of neighborhood doctrine in the fight against restrictive covenants. A close examination of this case and doctrine provides insights into the NAACP’s civil rights litigation strategy. First, Hundley demonstrates the NAACP’s desire to use litigation as a tool to educate the courts and the public about the social and economic impacts of restrictive covenants. In addition, the use of this doctrine highlights Houston’s legal pragmatism: Ideologically, the change of neighborhood doctrine was a compromise because it accepted the premise of segregated neighborhoods. In making this argument, Houston utilized the converging interests of white homeowners, who wanted to be able to sell their properties to Black buyers. Ultimately, Hundley and the change of neighborhood doctrine showcase Houston’s ingenuity, pragmatism, and forward thinking at a time when the NAACP faced long odds in the fight against housing segregation.

--Dan Ernst

Tuesday, October 20, 2020

Littleton-Griswold Prize to Seo for "Policing the Open Road"

The American Historical Association has just announced its annual prizes.  The winner of the AHA's Littleton-Griswold Prize "for the best book in any subject on the history of American law and society, broadly defined," is Sara Seo, Columbia Law School (and a former LHB Guest Blogger), for Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press).  Congratulations, Professor Seo!

--Dan Ernst

Magness on Coining "Neoliberalism" in Weimar Germany

Phillip Magness, American Institute for Economic Research, has posted Coining Neoliberalism: Interwar Germany and the Neglected Origins of a Pejorative Moniker:

Widespread academic use of the term "neoliberalism" is of surprisingly recent origin, dating to only the late 20th century. The vast and growing literature on this subject has nonetheless settled on an earlier origin story that depicts the term as self-selected moniker from the Walter Lippmann Colloquium, a 1938 Paris gathering of free-market academics that foreshadowed the post-war founding of the Mont Pelerin Society.

This origin story, however, is a myth that likely derives from a misreading of French philosopher Michel Foucault, who first directed modern scholarly attention to the Paris gathering. By turning to neglected German-language sources, this study shows that the term and modern concept of "neoliberalism" predate the 1938 conference. Rather, "neo/neu-liberalismus" was first popularized by a succession of Marxist and Fascist political theorists in the early 1920s, who employed it as a term of disparagement against the "Marginal Utility School" of economic thought anchored at the University of Vienna. These critics of marginalism diverged sharply on the political far-left and far-right of interwar Austrian and German politics, but shared a common disdain for the theory of subjective value promoted by the Viennese circle around economist Ludwig von Mises.

This earlier origin story of the term links it conceptually to modern-day uses, which often display a similar pejorative character to its interwar uses on the political left. It further helps to explain why several attendees of the 1938 conference, Mises among them, rejected the proposed term.
--Dan Ernst

Balkin on Lawyers, Historians, and the Constitution

Jack M. Balkin, Yale Law School, has posted Lawyers and Historians Argue About the Constitution, which is forthcoming in Constitutional Commentary 35 (2020):

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.
--Dan Ernst

Monday, October 19, 2020

Metzger on Roman Law

Ernest Metzger, University of Glasgow School of Law, has posted Roman Law, which is forthcoming in Koten no Chosen, ed. Y. Kasai and V. Cazzato, (Tokyo: Chisen Shokan):

The Romans developed a sophisticated body of law over one thousand years. The law was consulted and used in medieval and modern Europe, and from Europe it was exported around the world. Many modern legal systems are based, or partly indebted to, Roman law. The Roman legal tradition endured, even as specific rules fell away. The success of the legal tradition is due to the quality of the legal materials that the Romans produced. Roman office holders were eager to extend new rights to the public, and a professional body of lawyers were skillful in developing those rights and bringing them to a high degree of precision. The Romans eventually produced a systematic framework for their law, and that framework is still reflected in many modern legal systems. The framework paired two diverse bodies of law, property and obligations, which together reflected a person’s economic affairs. The two bodies are unequal; far more rights are treated under obligations than property, and the law of obligations is, to a large extent, an accessory to the law of property. The central role of property in Roman private law indeed proved to be a hindrance in the modern era, when states sought to use Roman private law as a foundation for their own legal systems. 

--Dan Ernst

Call for Applications: J. Willard Hurst Summer Institute in Legal History

 Via the American Society for Legal History, we have the following call for applications:

The J. Willard Hurst Summer Institute in Legal History is a biennial event sponsored by ASLH and traditionally held in June in Madison, Wisconsin, with support from the Institute for Legal Studies of the University of Wisconsin, where the late Professor James Willard Hurst was a founding member of the modern field of legal history. Each Hurst Institute is organized and chaired by a well-known legal historian and includes visiting senior scholars who lead specialized sessions. An ASLH committee reviews applications and selects 12 early career scholars from around the world as Institute Fellows. The Fellows participate in seminars, meet other legal historians, and present their own work. The program is structured but informal, and features discussions of core readings in legal history and analysis of the work of the participants in the Institute. Fellowships are supported by dedicated funds donated in honor of leading mentors in the field, the alumni of past Hurst fellows, and for other worthy ASLH goals that reflect its commitment to supporting early career scholars.

Scholars in law, history and other disciplines pursuing research on legal history of any part of the world and all time periods are eligible to apply. The seminar and written materials are conducted in English, and we cannot consider non-anglophone applications. Applicants with no formal training in legal history are encouraged to apply. Traditionally, the selection committee has sought to create a cohort of fellows with varying degrees of familiarity with the field, and welcome applications from scholars at an early stage of their career (beginning faculty members, doctoral students who have completed or almost completed their dissertations, and J.D. graduates).

Applications for the eleventh Hurst Summer Institute, which will take place June 13 – 26, 2021, will be accepted until January 15, 2021. Applicants should be aware that it is possible that the 2021 session may be held remotely. This would, of course, be a significant change in the program, but we are committed both to supporting early career scholars and to ensuring the safe conduct of the Institute. While a virtual program would be different from an in-person one, we will do everything possible to build community that will be of lasting value to fellows. A decision will likely be made by the end of March in consultation with the ASLH Hurst Committee and accepted Fellows, in light of conditions at the time. 

Applications must include a cover letter, CV, and research agenda (of no more than 2,500 words) as a single PDF document. Submit your application any time between December 1, 2020 and January 15, 2021. Additionally, two letters of recommendation should be submitted on each applicant’s behalf by the January 15 deadline. Questions on the application process can be directed to hurst@law.wisc.edu. It is the responsibility of the applicant to ensure that we receive a complete application packet by the deadline. Please note that incomplete applications will not be accepted. Applicants will be notified of a decision no later than March 1, 2021.

The 2021 Institute will be chaired by Lauren Benton, Barton M. Biggs Professor of History and Professor of Law at Yale University, and Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History at the University of Pennsylvania. Previous Hurst Institute sessions were led by distinguished legal history scholars, Lawrence Friedman (Stanford University), Robert W. Gordon (Yale and Stanford), Barbara Young Welke (University of Minnesota), Hendrik Hartog (Princeton University), and Mitra Sharafi (University of Wisconsin).

I think all the LHB Bloggers would attest to the high quality of the Hurst Institute and the terrific opportunity it presents to emerging scholars. Please spread the word!

-- Karen Tani

Saturday, October 17, 2020

Weekend Roundup

  • We’ve previously noted that Linda Kerber will deliver the 2020 Charles Homer Haskins Prize Lecture from the College and Law at the University of Iowa at 3:00 PM Eastern Time on Wednesday, October 28 and our now please to pass along word that Constance Backhouse, ASLH delegate to the American Council of Learned Societies and a former ASLH president, and former ASLH Treasurer, Craig Klafter, nominated Professor Kerber was nominated for this prize.
  • A recording of the 2020 Roger Trask Lecture of the Society for History in the Federal Government, delivered by Bill Williams, formerly Chief of the Center for Cryptologic History at the National Security Agency, is here.
  • The 14th Annual South Asia Legal Studies Workshop happened online this week, hosted by the University of Wisconsin Law School. It included a good crop of legal history papers (program here).
  • "100 Years After the 19th Amendment: Their Legacy, and Our Future,” a traveling exhibit of the American Bar Association, opens at the University of Kentucky J. David Rosenberg College of Law on October 18.  Several events are planned, and the UK Law Library has created an accompanying websiteMore.
  • Update: Over at IEHS Online, the website of the Immigration and Ethnic History Society, Jane Hong interviews Lucy Salyer about Under the Starry Sky. (Also: it does have legs: I discussed Laws Harsh as Tigers in class this semester, too!  DRE.)

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

Friday, October 16, 2020

Green on the Three Commerce Powers

Christopher R. Green, University of Mississippi School of Law, has posted Tribes, Nations, States: Our Three Commerce Powers:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship — the Privileges or Immunities Clause for states and fiduciary principles for the federal government — instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law — federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari — receive possible justification.
 -Dan Ernst

Hamburger on Delegation and the Vesting Clauses

Philip Hamburger, Columbia Law School, has posted Delegating or Divesting? on the website of the Northwestern University Law Review:

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth- century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.
–Dan Ernst.  H/t: Legal Theory Blog

Smith v. Allwright at University of Kentucky

Lonnie Smith Votes in 1944 Primary

 [We have the following announcement.  DRE.]

The University of Kentucky Special Collections Research Center (SCRC) pleased to announce a new exhibit titled “Black Voters, White Primaries." Using case files from the papers of Supreme Court Justice Stanley Forman Reed, as well as other archival materials from the collections, the exhibit explores how Smith v. Allwright (1944) helped end the “white primary," a voter suppression tool that served as the first line of attack—and often the only one needed—to prevent Black Americans from voting in the Jim Crow South. BONUS: UK Rosenberg College of Law Professor Josh Douglas weighs in on voter suppression this election season.

The exhibit was created as part of UK’s John G. Heyburn II Initiative for Excellence in the Federal Judiciary, a non-partisan endeavor devoted to the preservation and study of federal judicial history, with a particular focus on Kentuckians in the federal courts. 

Credit for image:  “Courtesy University of Kentucky Special Collections Research Center”