Monday, July 15, 2019

Spitzer on Washington State's Blanket Primary

Hugh D. Spitzer, University of Washington School of Law, has posted Be Careful What You Wish For: Private Political Parties, Public Primaries, and State Constitutional Restrictions, forthcoming in the Washington Law Review 94 (2019): 823-50:
Political parties always disliked the Progressive Era changes that pulled the entire electorate into nominating candidates. Why, after all, should non-party members participate in the affairs and choices of private organizations? Over the course of a century, Democrats, Republicans, and minor parties repeatedly mounted lawsuits to attack new primary laws, and they eventually prevailed on a key constitutional issue: the First Amendment right of association. But when political actors access the courts for strategic purposes, they can get caught in the vagaries of history and public attitudes, with outcomes they might not like. This essay focuses on the history of Washington State’s “direct primary” and “blanket primary” systems, the repeated lawsuits challenging them, and the freedom of association doctrine that propelled the blanket primary’s 2004 demise. It then recounts the blowback from Washington voters, who enacted a “top two” primary system that sidelined the political parties by sending the two highest vote-getters to the general election regardless of political affiliation. It asserts that remaining aspects of Washington’s election system might violate the state’s own constitution, and that things could get worse than ever for the parties, perhaps disrupting precinct officer elections and even the state’s presidential primary. How did the political parties wind up at odds with their own voters, with an outcome opposite to what they intended? This essay suggests that the answer lies in a web of conflicts: between litigation and political strategies; between the federal and state constitutions; and between the First Amendment’s protections of freedom of association, the late nineteenth century populist constitutional ban on public assistance to private entities, and the early twentieth century progressive goal of forcing private political parties to open their processes to the voting public. It concludes that long-term litigation strategies to address political issues can fail to achieve their objectives when those lawsuits overlook historical policy choices and ignore popular sentiments entrenched in the national and state constitutions.
--Dan Ernst

VanderVelde on the 13th Amendment and Master-Servant law

Lea S. VanderVelde, University of Iowa College of Law, has posted Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after its Enactment, which is to appear in the William & Mary Bill of Rights Journal 27 (2019): 1079-1112:
In the 19th century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers. Blackstone’s Commentaries was the received common law, from the nation’s early days through the settlement of new states in the American West. Blackstone’s Chapter 14, organized the legal rules into a system of subordination as formal inequality. As the system’s foundation, Blackstone used slavery, rather than partnership or voluntary free labor. Thus, when the nation abolished slavery by the 13th Amendment, the structure’s foundation was implicitly undermined.

Moreover, during Reconstruction, the Radical Republicans, who dominated the post-War Congress, engaged in a sweeping anti-subordination agenda marked by multiple reform initiatives. Oppressive labor systems that they found to be slave-like were deemed “anti-republican.” An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights. Yet, this ethos did not find its way into a revision of all of the subordinating principles in the nation’s common law of master and servant. In the years immediately after its enactment, the anti-subordination agenda lost ground. The 13th Amendment was subject to different interpretations as state courts, analogized more broadly or narrowly, depending upon their state’s position as a former slave state or free state. As a result, the nation’s received common law was never completely reordered upon a new foundation of fully free labor.
--Dan Ernst

Saturday, July 13, 2019

Weekend Roundup

  • HistPhil has launched an "online forum marking the 200th anniversary of the Supreme Court case Dartmouth College v. Woodward, a landmark decision in shaping the legal landscape of U.S. civil society." Here's the first contribution, by Johann Neem (Western Washington University).
  • In Custodia Legis (the blog of the Law Librarians of Congress) spotlights some of its Spanish Legal Documents (15th-19th centuries).
  • OMB/NARA Memorandum on Transition to Electronic Records: “By 2022, [the National Archives and Records Administration] will no longer accept transfers of permanent or temporary records in analog formats and will accept records only in electronic format and with appropriate metadata.”
  • Call for Papers: The Fourth Biennial Public Law Conference, University of Ottawa Law School, Common Law Section, 17-19 June 2020.
  •  ICYMI: Chieftains Museum Host Exhibition on Legal Aspects of Cherokee Removal in Georgia (from the Coosa Valley News). James Thornton Harris on Charles Reich and The Greening of America on HNN.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 12, 2019

Donelson on Holmes and Nihilism

Raff Donelson, Louisiana State University, Baton Rouge, has posted The Nihilist, which appears in The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. (Seth Vannatta, ed. Lexington Press 2019), 31-48:
Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.
–Dan Ernst.  H/t: Legal Theory Blog

TOC for the volume after the jump:

Thursday, July 11, 2019

Tell on Emmett Till

Dave Tell, University of Kansas has published Remembering Emmett Till with the University of Chicago Press. From the publisher: 
Remembering Emmett Till
Take a drive through the Mississippi Delta today and you’ll find a landscape dotted with memorials to major figures and events from the civil rights movement. Perhaps the most chilling are those devoted to the murder of Emmett Till, a tragedy of hate and injustice that became a beacon in the fight for racial equality. The ways this event is remembered have been fraught from the beginning, revealing currents of controversy, patronage, and racism lurking just behind the placid facades of historical markers.
In Remembering Emmett Till, Dave Tell gives us five accounts of the commemoration of this infamous crime. In a development no one could have foreseen, Till’s murder—one of the darkest moments in the region’s history—has become an economic driver for the Delta. Historical tourism has transformed seemingly innocuous places like bridges, boat landings, gas stations, and riverbeds into sites of racial politics, reminders of the still-unsettled question of how best to remember the victim of this heinous crime. Tell builds an insightful and persuasive case for how these memorials have altered the Delta’s physical and cultural landscape, drawing potent connections between the dawn of the civil rights era and our own moment of renewed fire for racial justice.
 Praise for the book:

Remembering Emmett Till sets the bar for future work on memory, civil rights, and the case that arguably gave the movement its legs. With deft archival work and savvy on-the-ground sleuthing, Tell unearths from the unrelenting Delta landscape many secrets locals have longed to keep buried. Accessible, engaging, and a page-turner from the jump.” -David W. Houck

“Tell has written the Emmett Till book still begging to be written. The tragedy of this case gave it a place in history books, but its place in American memory was far more complicated. Revisionist history is one thing; rewriting history is another. Tell’s argument that race and geography were at the core of that rewriting makes for a compelling and convincing read. As Tell shows, collective forgetting, willfully done, has created a new layer of tragedy to the Emmett Till story.” -Devery S. Anderson

“With almost surgical precision, Tell unpacks what he presciently calls ‘the deep intertwining of race, place, and commemoration’ in his brilliant new history of the remembrance of Emmett Till. Excellent histories of this 1955 murder abound, but no one until now has told the multilayered and painfully tangled history of Till’s commemoration in the Mississippi Delta. This may be the single greatest ‘history of memory’ I have ever read.” -James Young

"Remembering Emmett Till is an expertly rendered and original study of an acutely important episode in modern national memory. Tell shows, in evocative detail, how collective patterns and projects of commemoration can be both necessary and confounding, social and topographical, found and invented, tragic and reconstructive. In doing so, Tell blends ideas, places, artifacts, and evidence together in new ways so that readers may revisit, with striking implications, the question of how best to commemorate a historical injustice that will not--and, as Tell suggests, should not--leave us alone." -Bradford Vivian

Further information is available here.

--Mitra Sharafi

Wednesday, July 10, 2019

Wilf on the Legal Treatise

Steven Wilf (University of Connecticut School of Law) has posted notice of "The Legal Treatise," which is a contribution to the forthcoming Oxford Handbook of Law and Humanities (Oxford University Press, 2019). The Handbook editors are Maksymilian Del Mar, Simon Stern, and Bernadette Meyler. Here is the abstract:
The legal treatise is a subject with a pedigree. Four seminal articles by eminent legal historians have defined how we think about this particular fabrication of literary form. Writing in the midst of debates over critical analysis of law, A.W.B. Simpson identified the treatise as a common law form of summation for legal doctrine. Its rise was marked by nineteenth-century demands for a tidy form of legal thinking while the doctrinal skepticism of legal realism doomed the genre by the 1930s. Morton Horwitz underscored the importance of treatises for legal historians. In his view, the genre serves as a freeze-frame of law as it is conceived in a given moment of time. Angela Fernandez and Markus Dubber argued that the treatise was a more or less stable mixture of law as it is and law as it should be. They foregrounded the utopian dimension within the legal treatise. Christopher Tomlins identified the treatise as a legal technology with set purposes. Many of these purposes are deeply instrumental—and the very act of recordation is an exercise of power. This essay disembarks from these important contributions. Drawing upon such diverse fields as the history of the book, literary genre studies, information management, and the sociology of knowledge, it underscores the multiplicity of the treatise’s genre ecosystem. The legal treatise simultaneously serves as a site for the production of knowledge, a stepping-stone or even substitute for codes, fabricated order, a mechanism for establishing authorial authority, a professional talisman, a technic of systematizing and organizing information, a legitimization of existing norms, and a means of constructing a national jurisprudence akin to the way a dictionary might define a national language. The essay focusing largely on common law treatises of the long nineteenth-century will examine these and other purposes operating within the social context of the legal profession. How do these competing goals exist within a single literary artifact? What pressures threaten to unravel the legal treatise’s claims to monumental authority? The essay’s salient contribution will be its highlighting the importance of time. The legal treatise is a genre which simultaneously asserts its place as a summa of legal knowledge and—as the commonplace historical introduction especially underscores—will be subject to countless revisions. It is a text readied for obsolescence. Beneath the treatise’s façade of professional authority lies a profound anxiety about its own timelessness.
The chapter is not available for download, unfortunately; we will notify you when the edited collection becomes available. (h/t: Legal Theory Blog)

-- Karen Tani

Avi-Yonah, Fishbien & Mazzoni on Surrey and Tax Policy

Reuven S. Avi-Yonah University of Michigan Law School, and two SJD candidates at Michigan Law, Nir Fishbien and Gianluca Mazzoni, have posted Stanley Surrey, the Code and the Regime:
Stanley Surrey (1910-1984) was arguably the most important tax scholar of his generation. Surrey was a rare combination of an academic (Berkeley and Harvard law schools, 1947-1961 and 1969-1981) and a government official (Tax Legislative Counsel, 1942-1947; Assistant Secretary for Tax Policy, 1961-1969). Today he is mostly remembered for inventing the concept of tax expenditures and the tax expenditure budget. This paper will argue that while Surrey was influential in shaping domestic tax policy for a generation and had an impact after his death on the Tax Reform Act of 1986, his longest lasting contributions were in shaping the international tax regime, since the concept of the single tax principle that shapes contemporary international tax reform efforts can be traced directly to his writing and activities both in academia and in the government.
This draft draws makes good use of Surrey's unpublished memoir but only passingly refers to the wider collection of Surrey Papers opened at HLS in 2017, used by George Yin in a recent article.  I'm no historian of taxation, but in my research on the early New Deal even I could spot Surrey's brilliance at the National Recovery Administration, as he took no pains to hide it, even when, as a matter of bureaucratic politics, he might have been prudent to have done so.

--Dan Ernst.  H/t: Legal Theory Blog

Milanech, "Paternity: The Elusive Quest for the Father"

Harvard University Press has released Paternity: The Elusive Quest for the Father (June 2019), by  Nara B. Milamich (Barnard College). A description from the Press:
For most of human history, the notion that paternity was uncertain appeared to be an immutable law of nature. The unknown father provided entertaining plotlines from Shakespeare to the Victorian novelists and lay at the heart of inheritance and child support disputes. But in the 1920s new scientific advances promised to solve the mystery of paternity once and for all. The stakes were high: fatherhood has always been a public relationship as well as a private one. It confers not only patrimony and legitimacy but also a name, nationality, and identity.

The new science of paternity, with methods such as blood typing, fingerprinting, and facial analysis, would bring clarity to the conundrum of fatherhood—or so it appeared. Suddenly, it would be possible to establish family relationships, expose adulterous affairs, locate errant fathers, unravel baby mix-ups, and discover one’s true race and ethnicity. Tracing the scientific quest for the father up to the present, with the advent of seemingly foolproof DNA analysis, Nara Milanich shows that the effort to establish biological truth has not ended the quest for the father. Rather, scientific certainty has revealed the fundamentally social, cultural, and political nature of paternity. As Paternity shows, in the age of modern genetics the answer to the question “Who’s your father?” remains as complicated as ever.
A few blurbs:
“‘Mama’s baby, Papa’s maybe.’ DNA testing has all but destroyed the uncertainty that has attended paternity for millennia. Milanich has written a fascinating history of the ways societies have coped with anxiety about paternity, and how that anxiety has helped construct notions of fatherhood, masculinity, race, and family.”—Annette Gordon-Reed

“This splendid work shows how the development and use of paternity testing over several centuries determined individuals’ fates. For millions of people, ‘Who’s your daddy?’ was not simply an idle question, but often a matter of life or death.”—Sonya Michel
More information is available here.

-- Karen Tani

Tuesday, July 9, 2019

Siddiqui and friends on locating the Sharīʿa

Sohaira Siddiqui, Georgetown University Qatar has edited Locating the Sharīʿa: Legal Fluidity in Theory, History and Practice. Out with Brill earlier in 2019, it includes a number of chapters that take a historical approach. The book is vol.48 in the "Studies in Islamic Law and Society" series. From the press: 
Cover Locating the Sharīʿa
The study of the sharīʿa has enjoyed a renaissance in the last two decades and it will continue to attract interdisciplinary attention given the ongoing social, political and religious developments throughout the Muslim world. With such a variety of debates, and a corresponding multitude of theoretical methods, students and non-scholars are often overwhelmed by the complexity of the field. Even experts will often need to consult multiple sources to understand these new voices and provide accessible answers to specialist and non-specialist audiences alike. This volume is intended for both the novice and expert as a companion to understanding the evolution of the field of Islamic law, the current work that is shaping this field, and the new directions the sharīʿa will take in the twenty-first/fifteenth century. 
Contributors are Khaled Abou El Fadl, Asma Afsaruddin Ahmad Ahmad, Sarah Albrecht, Ovamir Anjum, Dale Correa, Robert Gleave, Sohail Hanif, Rami Koujah, Marion Katz, Asifa Quraishi-Landes, David Warren and Salman Younas.
Further information is available here.

--Mitra Sharafi

Monday, July 8, 2019

Okayama's "Judicializing the Administrative State"

Hiroshi Okayama, Professor of Political Science in the Faculty of Law at Keio University, Tokyo, Japan, has published Judicializing the Administrative State: The Rise of the Independent Regulatory Commissions in the United States, 1883-1937 (Routledge, 2019):
A basic feature of the modern US administrative state taken for granted by legal scholars but neglected by political scientists and historians is its strong judiciality. Formal, or court-like, adjudication was the primary method of first-order agency policy making during the first half of the twentieth century. Even today, most US administrative agencies hire administrative law judges and other adjudicators conducting hearings using formal procedures autonomously from the agency head. No other industrialized democracy has even come close to experiencing the systematic state judicialization that took place in the United States.

Why did the American administrative state become highly judicialized, rather than developing a more efficiency-oriented Weberian bureaucracy? Legal scholars argue that lawyers as a profession imposed the judicial procedures they were the most familiar with on agencies. But this explanation fails to show why the judicialization took place only in the United States at the time it did. Okayama demonstrates that the American institutional combination of common law and the presidential system favored policy implementation through formal procedures by autonomous agencies and that it induced the creation and development of independent regulatory commissions explicitly modeled after courts from the late nineteenth century. These commissions judicialized the state not only through their proliferation but also through the diffusion of their formal procedures to executive agencies over the next half century, which led to a highly fairness-oriented administrative state.
Here's the TOC:
Introduction
Chapter 1: Why Did the U.S. Administrative State Judicialize?
Chapter 2: The Judicial Roots of the Interstate Commerce Commission
Chapter 3: Creating the "Supreme Court of Finance"
Chapter 4: Retrenching Administrative Commissions, Expanding State Judiciality
Chapter 5: The Institutional Consolidation of the Independent Regulatory Commissions
Conclusion
--Dan Ernst

Seidman on Populist and Progressive Strands in Liberal Constitutionalism

Louis Michael Seidman, Georgetown University Law Center, has posted Why Bernie is Confused: Populist and Progressive Strands in Liberal Constitutionalism:
Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”

There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of private markets. The solution to this problem is government regulation by elite experts shielded from popular control.

Bernie Sanders speaks as a populist when he complains about the billionaire party; he speaks as a progressive when he advocates Medicare for all; and he speaks as a liberal when he fails to notice the tension between these two views.

This article’s primary focus is on how this contradiction plays out in the context of constitutional law. Populists and progressives had different conceptions of the corruption that constitutional law should address. For progressives, corruption consisted of contamination of government expertise by ignorant and prejudiced mass opinion. In contrast, populists distrusted rationalistic, elite opinion. The corruption they feared was elite government control that led to the oppression of ordinary people by “their betters.”

This article examines the dispute between populists and progressives in the context of the Scopes Monkey Trial, Buck v. Bell, Skinner v. Oklahoma, West Virginia State Board of Education v. Barnette, the Warren Court era, and our present period. A conclusion explores ways in which the conflict between populists and progressives might be resolved.
--Dan Ernst

Saturday, July 6, 2019

Weekend Roundup

  • Eric Rauchway will speak on his book, Winter War: Hoover, Roosevelt, and the First Clash over the New Deal, on Thursday, July 18, 2019 at 7:00 p.m., in the Henry A. Wallace Center at the FDR Presidential Library and Home.   I recently read Winter War and learned a great deal from it.  In particular, I was struck by its depiction of Hoover as a person who, incapable of taking no for an answer on November 8, 1932, at once started laying the foundation for what he was certain would be his inevitable vindication.  But even this was to be denied him: when conservatives finally looked for an early twentieth-century president to exalt, they rejected Hoover (the Reconstruction Finance Corporation looked too much like the Troubled Asset Relief Program) in favor of Coolidge.  DRE
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 5, 2019

PhD Program in Global History and Governance

[We have the following announcement.  DRE]

PhD Program in Global History and Governance, Scuola Superiore Meridionale at the University of Naples Federico II, Napoli (Italy).  Program coordinator: Prof. Daniela Luigia Caglioti

Six 4-year doctoral fellowships are available at the newly instituted Scuola Superiore Meridionale in Naples (Italy) for the academic year 2019-2020

Scholarship amount: € 19,000.00 per year; 50% increase of the scholarship for research abroad;
Up to 20% of the scholarship in research funds per year.  Starting date: 1 November 2019.

The Program: The PhD in Global History and Governance is an advanced research degree at the end of which each student must defend a dissertation based on independent and original academic research. The course offers a multi-disciplinary training program based on history and law and open to contributions from other disciplines, such as economics, political science and political philosophy. The program focuses on the comparison, connections and processes of globalization that have characterized different areas of the planet since the first epoch of global imperialism and does so by focusing on the relational dimension of historical processes, legal regimes and the organization of power, on the interdependencies between economic, political, juridical, cultural and social factors and on the circulation, exchange and interconnection of ideas, people, institutions, legal cultures, political models, concepts, rights and goods on a global scale.  More information are available [here].

Candidates must possess a MA/MS degree by October 30, 2019 and an excellent command of English; They must present a research project in a subject relevant to the PhD program.

Required Application Materials:
  • Online application form (and a € 50 fee payment for Italian citizens only);
  • Copy of an ID document;
  • CV (max 2 pages);
  • Master’s degree thesis (plus abstract);
  • Copy of publications, if present;
  • Two letters of recommendation;
  • A research proposal (max 3,500 words).
Application deadline: September 2, 2019, 12:00 (CET).  Details and application forms are to be found [here (Italian version) and here (English version)]. 

For further information, please contact Prof. Daniela Luigia Caglioti, danielaluigia.caglioti@unina.it

UC Irvine Seeks Applications for Assistant Professor of Criminology, Law & Society

We have the following job posting:
ASSISTANT PROFESSOR, CRIMINOLOGY, LAW AND SOCIETY
The Department of Criminology, Law and Society at the University of California, Irvine invites applications for one or more Assistant Professor positions in CLS. We welcome applications from outstanding candidates in all fields. We are especially interested in candidates with research interests and expertise in one or more of the following areas: 1) Policing; 2) Global challenges in criminology, law & society; 3) Technology, law, and social control. We also aim to deepen our departmental strengths in conducting innovative research that addresses problems of inequality and injustice in a range of social and institutional settings, including within those three substantive areas of interest. 
More information is available here.

Temple on Legal Emotions in Blackstone's England

Just out with NYU Press is Loving Justice: Legal Emotions in William Blackstone's England by Kathryn D. Temple, Georgetown University. From the publisher:
Loving Justice
William Blackstone’s masterpiece, Commentaries on the Laws of England (1765–1769), famously took the “ungodly jumble” of English law and transformed it into an elegant and easily transportable four-volume summary. Soon after publication, the work became an international monument not only to English law, but to universal English concepts of justice and what Blackstone called “the immutable laws of good and evil.”
Most legal historians regard the Commentaries as a brilliant application of Enlightenment reasoning to English legal history. Loving Justice contends that Blackstone’s work extends beyond making sense of English law to invoke emotions such as desire, disgust, sadness, embarrassment, terror, tenderness, and happiness. By enlisting an affective aesthetics to represent English law as just, Blackstone created an evocative poetics of justice whose influence persists across the Western world. In doing so, he encouraged readers to feel as much as reason their way to justice.
Ultimately, Temple argues that the Commentaries offers a complex map of our affective relationship to juridical culture, one that illuminates both individual and communal understandings of our search for justice, and is crucial for understanding both justice and injustice today.
Further information is available here.

--Mitra Sharafi

Thursday, July 4, 2019

The Passing of António Manuel Hespanha

[We have the following announcement from the Directors of the Brazilian Institute for Legal History.  The citation for Professor Hespanha when he was named an honorary fellow of the American Society for Legal History is here.  DRE.]

The IBHD – Instituto Brasileiro de História do Direito (Brazilian Institute for Legal History) regrets to inform that Professor António Manuel Hespanha, honorary fellow of the IBHD and of the American Society for Legal History, passed away on July 1, in Lisbon. Professor Hespanha, one of the most influential contemporary European legal historians, revolutionized the field of Lusophone legal history. Through intense friendship and intellectual exchange for the past 20 years, Professor Hespanha was crucial in the construction of the field in Brazil. With sadness, the IBHD reaffirms its commitment to the memory of Professor Hespanha, who will continue to be our greatest source of inspiration.

Wednesday, July 3, 2019

Saxine, "Properties of Empire"

New York University Press has released Properties of Empire: Indians, Colonists, and Land Speculators on the New England Frontier (April 2019), by Ian Saxine (Bridgewater State University). A description from the Press:
Properties of Empire shows the dynamic relationship between Native and English systems of property on the turbulent edge of Britain’s empire, and how so many colonists came to believe their prosperity depended on acknowledging Indigenous land rights.

As absentee land speculators and hardscrabble colonists squabbled over conflicting visions for the frontier, Wabanaki Indians’ unity allowed them to forcefully project their own interpretations of often poorly remembered old land deeds and treaties. The result was the creation of a system of property in Maine that defied English law, and preserved Native power and territory. Eventually, ordinary colonists, dissident speculators, and grasping officials succeeded in undermining and finally destroying this arrangement, a process that took place in councils and courtrooms, in taverns and treaties, and on battlefields.

Properties of Empire challenges assumptions about the relationship between Indigenous and imperial property creation in early America, as well as the fixed nature of Indian “sales” of land, revealing the existence of a prolonged struggle to re-interpret seventeenth-century land transactions and treaties well into the eighteenth century. The ongoing struggle to construct a commonly agreed-upon culture of landownership shaped diplomacy, imperial administration, and matters of colonial law in powerful ways, and its legacy remains with us today.
A few blurbs:
"Properties of Empire clearly reflects the authors deep immersion and strong understanding of Wabanaki and Anglo-American social, and cultural patterns. A significant contribution to the field of Native-colonial relations." -- Daniel Mandell
"An intriguing, thought provoking, and important [book] that recognizes the importance of land issues in Indian Country today through close historical work on the ideologies that surround land ownership in previous centuries." -- Christopher Bilodeau
More information is available here.

-- Karen Tani

"A Case for Legal History": Madar on Edwards

I'm catching up on my JOTWELL reading and realizing we never posted about Allison Madar's recent contribution for the Legal History Section. Madar (University of Oregon) reviews Laura F. Edwards's "Sarah Allingham’s Sheet and Other Lessons from Legal History," which appeared in Volume 38 of the Journal of the Early Republic (2018). Here's a taste of the review:
Edwards not only makes the case for the importance of the study of legal history as more than a subfield within larger explorations of the era of the early republic, but also illuminates (or, for legal historians reading the piece, reinforces) just how complicated “the law” was and the role it played in people’s everyday lives. “Law was not the authority to which people deferred,” she insists. “It was the authority they made. As such, it is impossible to understand the early republic without it.” (P. 147.) While these contentions might seem obvious to historians of the law, there is much to gain for specialists and non-specialists alike by reading—and teaching—Edwards’s notable article.

Edwards’s goals in “Sarah Allingham’s Sheet and Other Lessons from Legal History” are twofold. First, she aims to introduce recent scholarship that has moved “beyond the written records, legal officials, and designated institutions that other historians usually rely on to account for [the law’s] presence and influence.” (P. 122.) Second, Edwards challenges the idea that, in the nineteenth century, the law was either “simple” or “straightforward.” (P. 122). It was “the law’s very complexity,” she argues, that “made it more accessible to a wide range of people” (P. 122.) Edwards illustrates her aims through the story of a dispute over a bedsheet in New York City during the early nineteenth century, which she skillfully weaves throughout the essay, and then shifts to a discussion of both well-known and more recent work in the field of legal history.
Read on here.

-- Karen Tani

Tuesday, July 2, 2019

Brady to Harvard Law School

Via Twitter, we've learned that Professor Maureen E. Brady of the University of Virginia School of Law is moving to Harvard Law School. As Brady's UVA bio notes, she writes in the areas of "property law, land use law, local government law, legal history and intellectual property law," using "historical analyses of property institutions, doctrinal rules, land use policies and constitutional property provisions to explore broader theoretical questions." She is the recipient of numerous awards for her teaching and scholarship, including a recent one from the AALS for “The Forgotten History of Metes and Bounds."

Congratulations to Professor Brady and to HLS!

-- Karen Tani

Lowe on law and murder in revolutionary Virginia

Jessica K. Lowe, University of Virginia, published Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia with Cambridge University Press earlier in 2019. From the publisher: 
Murder in the Shenandoah
On July 4, 1791, the fifteenth anniversary of American Independence, John Crane, a descendant of prominent Virginian families, killed his neighbor's harvest worker. Murder in the Shenandoah traces the story of this early murder case as it entangled powerful Virginians and addressed the question that everyone in the state was heatedly debating: what would it mean to have equality before the law - and a world where 'law is king'? By retelling the story of the case, called Commonwealth v. Crane, through the eyes of its witnesses, families, fighters, victims, judges, and juries, Jessica K. Lowe reveals how revolutionary debates about justice gripped the new nation, transforming ideas about law, punishment, and popular government.
Praise for the book: 

 "Elegantly written and copiously sourced, Jessica K. Lowe’s book is a must-read for specialists and students alike. Lowe upends the accepted notion that southerners went outside the law to resolve conflicts because of the culture of honor that was inextricably embedded in slavery. She uses criminal law to open a window into social change in postrevolutionary Virginia and to set the stage for antebellum-era conflicts in imaginative and unexpected ways." -Victoria Saker Woeste

"Jessica K. Lowe's beautifully crafted account of murder and justice powerfully illuminates the reconstruction of criminal law in the early American republic. Lowe skillfully turns the story of a single Virginia killing into a compelling meditation on how people, high and low, struggled over the meaning of equality and the rule of law in the aftermath of revolution. A formidable piece of scholarship, Murder in the Shenandoah is also a gem of historical narration and analysis, at once tough-minded and humane." -Sean Wilentz 

"Professor Lowe has produced a volume that is both a murder mystery and a mini-treatise on the history of criminal law in colonial Virginia. Hard-nosed legal history has seldom been presented in such fascinating, readable form. Behind the legal story is an equally important story of social change in early Virginia. Lowe knows her Virginia law, and applies to it the questions of a modern historical sensibility. Readers will be surprised and intrigued by this admirable volume." -Stanley Katz

"In Jessica K. Lowe’s poetic telling of a murder trial in the Shenandoah Valley on Independence Day in 1791, we see how issues of class, violence, and the rule of law came together to lead to the execution of a Virginia patrician. Lowe’s beautifully written book shows the law in motion. Wage workers, slaves, jurors, and the legal and planter elite all cross her stage as the values of democracy made a new American law." -Alfred L. Brophy

Further information is available here.

--Mitra Sharafi

Monday, July 1, 2019

Barnes and Whewell on Contract Law in Britain's Shanghai Consular Court

Victoria Barnes, and Emily Whewell, Max Planck Institute for European Legal History, have posted English Contract Law Moves East: Legal Transplants and the Doctrine of Misrepresentation in British Consular Courts, which appears in the Chinese Journal of Comparative Law 7 (2019): 26-48:
This article analyses the legal conception of misrepresentation in the well-noted case of Von Gumpach v Hart (1870). It investigates to what extent the English doctrine of misrepresentation was adapted for the local context when the case was heard by the British Supreme Court for China and Japan in Shanghai. The article adds to our understanding of the historical evolution of the doctrine of misrepresentation in the common law world. We find that legal ideas concerning misrepresentation did not change significantly when they crossed borders. Lawyers in the British consular courts in China borrowed their legal understandings and knowledge from English contract law. It points to the context, the origins, and the socialization of the legal community as one way of understanding transfers between spatially separated groups. It also draws attention to other aspects of this phenomenon, which influence the ways in which legal ideas were received, such as information asymmetries between those at the centre and the periphery, the speed in the circulation of legal texts, and the movement of those in the legal profession.
 --Dan Ernst

CFP: ESCLH 2020 Lisbon

[We have the following call for papers.  DRE]

Professions and Methods in Comparative Legal History, 1-3 July 2020, University of Lisbon, Portugal

The Organising Committee of the 6th Biennal Conference and the Executive Council of the [European Society for Comparative Legal History (ESCLH)] are pleased to call for papers for the upcoming conference to be held. The main theme picks up threads of thought from the earlier ESCLH conferences in Valencia (2010), Amsterdam (2012), Macerata (2014), Gdansk (2016), Paris (2018) to explore what roles Professions and Methods have played, and continue to play, within comparative legal history. Offers of papers should be submitted by 15 November 2019 (details below).

The conference will focus on legal professions and method, especially the methods of legal professionals across Europe and the world. Judges, lawyers and other legal professions have developed differently from country to country and even now, we can find substantial differences in training, method, role and work. Legal methodology, including the motivation of judicial decisions, lawyerly style and method of arguing cases needs to be studied in historical and comparative perspective to understand where we are now, and where we might be heading.

Papers could probe the process of emergence and evolution of legal professions, from their institutional aspects and their understanding of their jobs, through to technical matters of method. They could also study the effects of structure of legal professions on the on the way law functions, most obviously through case law. Papers which also look through the lens of the historical context of the countries in which the legal professions operated are welcome.

Papers should be novel, properly researched and referenced. They should address the conference theme, exploring doctrinal, theoretical, cultural or methodological aspects of comparative legal history. They must also be comparative, addressing more than one system of laws. The organisers particularly welcome addressing multiple legal systems or cultures. This includes where a similar legal system functions in different cultural circles.

Practical details:
  1. To offer a paper, please send the title of their paper, a short abstract (of 200-400 words, no more, and a short CV (no more than 1 page) by 15 November 2019 to the organizing committee, c/o esclhinlisbon2020@fd.ulisboa.pt 
  2. The presentations should be in English.
  3. It is also possible to submit a complete proposal for one or more panels (3 papers normally).
  4. The list of accepted papers will be announced by early December 2019.
Shortly, a conference website will be launched with fuller details of the conference. For the moment, some transport and accommodation information follows.

Lisbon offers many accommodation possibilities ranging from five-star hotels, through smaller hotels and private rooms to beds in youth and student hostels. For some postgraduates the University of Lisbon, might be able to offer cheaper accommodation in student dormitories, and anything available will be advertised in due course.

Organising Committee: Pedro Barbas Homem; Susana Antas Videira; Ana Fouto; Jorge Silva Santos

Saturday, June 29, 2019

Weekend Roundup

  • OUP and CUP would like to know what scholarly monographs mean to academic researchers, readers and authors.
  • The Department of American Indian Studies, College of Liberal Arts, University of Minnesota invites applications for a full-time faculty position (open rank, tenured or tenure-track) beginning fall semester 2020.  The announcement is here.
  • “Luisa M. Kaye, daughter of Judith S. Kaye, former Chief Judge of the New York Court of Appeals, discusses the autobiography she co-edited about her mother's life and career and reveals the personal moments that shaped her judicial philosophy.”  NYSBA.
  • New From Edward Elgar: Authoritarian Constitutionalism: Comparative Analysis and Critique, ed. Helena Alviar García, Universidad de Los Andes, Colombia, and Günter Frankenberg, Goethe University in Frankfurt/Main, Germany.  “The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism.”
  • ICYMI: Princeton announces that Dirk Hartog has gone emeritus; HLS announces that Laura Weinrib is joining its faculty.   Four women, four lawyers: How a Fond du Lac family made law history before they could vote (Fond du Lac Reporter). More on legal historians as First Gentlemen (or whatever), here and here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 28, 2019

Greene and Witt to Lead ICH Seminar: Deadline 6/30!

[We're moving this up, because the deadline is Sunday, June 30.]

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, "Rethinking the Twentieth-Century Constitution."  It will be led by Jamal Greene, the Dwight Professor of Law at Columbia Law School, and John Fabian Witt, the Allen H. Duffy Class of 1960 Professor of Law, Professor of History, and Head of Davenport College at Yale University.
Much of our constitutional law today arises not out of the Founding and not out of the Reconstruction Amendments, but out of the great controversies and social mobilizations of the twentieth century. On four Fridays this fall Jamal Greene and John Fabian Witt will lead seminar participants on a guided tour through new literature on the history of the twentieth-century constitution. Topics include the invention of free speech, the making of the modern administrative state, the rise and fall of labor’s constitution, transformations in rights talk, and the significance of constitutional methods such as “originalism.” We will close with a consideration of the constitution’s future prospects.
Friday afternoons, 2:00-5:00 P.M. September 20, October 4 and 18, and November 1. The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

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, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until June 30, 2019. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

--Dan Ernst

Remembering Charles Reich (1928-2019)

I was sad to learn of the recent death of Charles Reich, an important figure in U.S. legal and political history. The headlines marking his passing tie him to the "counterculture," because of his influential book The Greening of America (1970) (excerpted famously in the New Yorkerhere). The Washington Post's obituary also highlights his teaching career at Yale Law School, where his students "included both Bill and Hillary Clinton."

But Reich's influence was much broader and deeper, and I want people to remember it--thus this post.

Charles Reich (Credit: John Q. Barrett)
I should start by saying that I never knew Charles Reich personally (apart from a nice email exchange in 2006, about an article I'll mention below). For a reflection from someone who did, read John Q. Barrett's lovely tribute, here. He describes Reich as "a dear friend and hero to many"--someone renowned for his "brilliant mind" and who was also "a beautiful writer, a wise teacher, a sharp lawyer, a kind soul."

I first learned of Reich in graduate school, when I began studying the history of welfare rights. Martha Davis's excellent Brutal Need (1993) discusses him in some depth in a chapter on the road to Goldberg v. Kelly (1970). Now only a footnote in many Constitutional Law courses, Goldberg v. Kelly was, at the time, a big deal. Gone was the assumption that public welfare payments were a mere gratuity, to be given or taken away at some bureaucrat's whim. Instead, the Supreme Court appeared to elevate public welfare to the same status as real property for the purpose of applying the Constitution's Due Process clause. Public welfare departments everywhere took note, as did a burgeoning welfare rights movement.

But even more important than the holding, to many welfare rights advocates, was the majority's sympathetic posture. Much to advocates' delight, Justice Brennan's opinion cited two of Reich's articles--"The New Property" (1964) and "Individual Rights and Social Welfare: The Emerging Legal Issues" (1965)--for observations about the life-or-death importance of welfare benefits to the individual recipient and the governmental interest in "foster[ing] the dignity and wellbeing of all persons within its borders." The most optimistic welfare rights theorists, such as Ed Sparer, saw in this decision a path from process to substance--from a constitutional right to fair treatment to a constitutional right to a minimum basic income. (This was not to be.)

But if Sparer was "a welfare law guru," to use Martha Davis's descriptor, Reich was something different. Indeed, Davis introduces him as "a New York intellectual who never practiced poverty law" and "was an unlikely source of insights about welfare." She then explains why he was, in fact, well-suited and well-positioned to lay the "scholarly groundwork" for this important step in the court-focused part of the welfare rights campaign. It's a fascinating story, that I think offers a better picture than the mainstream obituaries of who Reich was and why his life merits remembrance.

One important background factor, was Reich's long friendship with the famous New York family court judge and child welfare activist Justine Wise Polier (the mother of one of his boyhood friends). Through Polier, Reich met Elizabeth Wickenden, a prominent figure in Washington policy-making circles during the New Deal and after and a determined proponent of a more humane social welfare system. As Davis notes, and as I flesh out in States of Dependency, Wickenden sought Reich's counsel in the early 1960s, as she pondered how the Constitution might be used to stem an emerging tide of abusive and regressive welfare laws and policies. Wickenden also helped encourage Reich to develop and publish his own views on this question. For example, when (at Polier's urging) he turned his attention to one particularly offensive welfare administration practice--that of subjecting recipients to "midnight raids" of their homes--Wickenden ensured that his article received wide national distribution and was reprinted in the Congressional Record.

In explaining why Reich was drawn to such issues, Davis also notes Reich's time as a Supreme Court clerk for Justice Hugo Black and how that experience reinforced what he had already started to notice, in law school and earlier, about the vulnerability of people who relied on the government for their livelihoods. As Reich highlighted in 1990, in an article reflecting on "The New Property," one of the student notes that he helped conceptualize and publish as editor-in-chief of the Yale Law Journal was about "passport refusals for political reasons"; Reich was also aware of the legal work that his mentor Tom ("Tommie the Commie") Emerson had done for accused Communists and of the shadow this cast on all Emerson's associates. Reich's clerkship with Justice Black offered him additional examples. Among the cases he worked on in the 1953 term was Barsky v. Board of Regents (1954), in which a state revoked a doctor's license after he failed to respond to a subpoena from the now infamous House Un-American Activities Committee. The case reminded Reich, again, of the importance of government-issued benefits and how vulnerable such benefits made their holders to political pressures.

So compelling did Reich find these Cold War anticommunist persecutions, I argued (in my very first publication!), that he made one of them the centerpiece of "The New Property": Flemming v. Nestor (1960), in which the Supreme Court found that the deported immigrant Fedya Nestor had no property right in his accrued Social Security benefits (and therefore no valid constitutional argument about the way in which the state took those benefits away). A decision that attracted little attention at the time was, for Reich, “the most important of all judicial decisions concerning government largess”:
No form of government largess is more personal or individual than an old age pension. No form is more clearly earned by the recipient, who, together with his employer, contributes to the Social Security fund during the years of his employment. No form is more obviously a compulsory substitute for private property; the tax on wage earner and employer might readily have gone to higher pay and higher private savings instead. No form is more relied on, and more often thought of as property. No form is more vital to the independence and dignity of the individual. Yet under the philosophy of Congress and the Court, a man or woman, after a lifetime of work, has no rights which may not be taken away to serve some public policy.
Reich went on to describe this philosophy as a "feudal" one, characteristic of "collective societies" (Nazi Germany, Soviet Russia). Is this, he asked, what Americans should aspire to? With this clever maneuver, Reich put anticommunist sentiments to work for his own end--the end of giving individuals greater power vis-a-vis those who might abuse their dependency on the state.

One could write entire articles about the importance of "The New Property"--to constitutional law, administrative law, social welfare law, and legal theory. Indeed, many scholars have already done so. "The New Property" also generated important insights for other fields, such as family law and privacy law. It is no surprise that, according to Fred R. Shapiro, it is among the top ten "most cited law review articles of all time." And for me, "The New Property" will always have special meaning: the footnotes put me onto the research path that would lead to my dissertation and, many years later, my book. From Charles Reich's research and his life, I came to appreciate the powerful connections between the welfare rights advocates of the 1960s and 1970s and the New Deal liberals who crafted the social welfare apparatus they besieged.

And, of course, "The New Property" is only one of Reich's many contributions. Thankfully, there is a growing body of work on Reich and his legacy. For a sense of the circles in which Reich traveled, I recommend Laura Kalman's work on Yale Law School in the 1960s, as well as her book on Abe Fortas (whom Reich knew well). There is also a lovely piece by Rodger Citron on "the personal history of The Greening of America." And see the work of recent guest blogger Sarah Seo. She has written about Reich's encounters with the police, which often took place while he was driving, and the light they shed on the "regulatory history of criminal procedure." Even more recently, another former guest blogger, Reuel Schiller, has noted Reich's importance for recovering left-wing strands of anti-bureaucratic thought in the 1970s and early 1980s--strands that help explain the burst of deregulatory activity in the closing decades of the twentieth century. (I'm sure I am missing others; please let me know and I will add them.)

Perhaps, though, Reich should have the last word. Some of his thoughts about his life are memorialized in The Sorceror of Bolinas Reef (1976), an eccentric memoir written in the wake of his Greening of America fame. More recently, as his friend John Q. Barrett notes, Reich had taken to blogging and posting old photos.

The theme of his posts seems to be nostalgia for a simpler past and concern for a troubling present. For example, on December 9, 2018, as newspapers ran headlines about the Trump-Russia investigation, the last words of Jamal Khashoggi, and a devastating California wildfire, he wrote a post recalling what it felt like to listen to FDR's fireside chats. "We felt that the country was in good hands and on the right track. Few people feel that way today." Another post, titled "My Adirondack Photos," includes only two sentences: "When I was a teenager, I took these pictures. The view from Mt Kempshall can no longer be seen because the fire tower is gone."

Charles Reich is gone now, but, thankfully, he has left with us his unique perspective on the landscape surrounding him. That perspective mattered in 1965, as welfare rights cases were making their way to the Supreme Court, and it matters now, as we continue to puzzle over the questions that animated so much of his work: How do we vindicate liberty in an age when other cherished values seem to demand an ever greater state presence in our lives? If we invite the state to provide a humane, secure existence for its subjects, what is the price to individual freedom? And what kind of people will tend to pay it?        

-- Karen Tani

Tang on early modern European literature and international law

Chenxi Tang, University of California at Berkeley, published Imagining World Order: Literature and International Law in Early Modern Europe, 1500-1800 in 2018 with Cornell University Press. From the publisher; 
Imagining World Order: Literature and International Law in Early Modern Europe, 1500–1800
In early modern Europe, international law emerged as a means of governing relations between rapidly consolidating sovereign states, purporting to establish a normative order for the perilous international world. However, it was intrinsically fragile and uncertain, for sovereign states had no acknowledged common authority that would create, change, apply, and enforce legal norms. In Imagining World Order, Chenxi Tang shows that international world order was as much a literary as a legal matter. To begin with, the poetic imagination contributed to the making of international law. As the discourse of international law coalesced, literary works from romances and tragedies to novels responded to its unfulfilled ambitions and inexorable failures, occasionally affirming it, often contesting it, always uncovering its problems and rehearsing imaginary solutions.
Tang highlights the various modes in which literary texts—some highly canonical (Camões, Shakespeare, Corneille, Lohenstein, and Defoe, among many others), some largely forgotten yet worth rediscovering—engaged with legal thinking in the period from the sixteenth to the eighteenth century. In tracing such engagements, he offers a dual history of international law and European literature. As legal history, the book approaches the development of international law in this period—its so-called classical age—in terms of literary imagination. As literary history, Tang recounts how literature confronted the question of international world order and how, in the process, a set of literary forms common to major European languages (epic, tragedy, romance, novel) evolved.
Praise for the book: 
 "Imagining World Order is one of the most engaging books to appear in the field of early modern comparative literature. Tang’s analysis of the histories of early modern literary genre and the emergent discourse of international law is ambitious, significant and could not be more convincing."
- John Watkins

"Chenxi Tang’s work is remarkable, as is the scope of the study: spanning texts of the sixteenth, seventeenth, and eighteenth centuries while situating its discussion in relevant classical and medieval antecedents. This book will make a welcome contribution to scholarship on the history of law and New Diplomatic History."
- Mark Netzloff

Further information is available here.

--Mitra Sharafi

Thursday, June 27, 2019

Welles on Berle on the Corporate Bar

Harwell Wells, Temple University James E. Beasley School of Law, has posted a very interesting contribution on the American legal profession to that annual symposium on Berle and Means’s Modern Corporation and Private Power.  It’s “All Lawyers are Somewhat Suspect”: Adolf A. Berle and the Modern Legal Profession, Seattle University Law Review 42 (2019):
Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would be determined by that of the modern corporation.
--Dan Ernst

CFP: Australian & New Zealand Law & History Society

[We have the following call for papers for the annual conference of the Australian and New Zealand Law and History Society.  DRE]

 This year’s conference will be held in Melbourne, Australia, 11-14 December 2019. The theme is "Does Law’s History Matter? The Politics of our Disciplinary Practices."  Deadline for abstracts (individual or panel) and on the conference theme or any other topic is 21 July 2019. More information on the theme and submission of abstracts can be found on the conference website.
The keynote speakers are Professor Martha S. Jones, Society of Black Alumni Presidential Professor and Professor of History, Department of History, Johns Hopkins University;    Professor John Hudson, Professor of History, School of History, St Andrews University: Professor John Maynard, Indigenous Education and Research, University of Newcastle: and  Professor Shaunnagh Dorsett, Faculty of Law, University of Technology Sydney.

Barbas To Head Baldy Center

The Baldy Center for Law & Social Policy at the State University of New York, Buffalo has announced a new director: Professor Samantha Barbas (recently a guest blogger here at LHB). Here's an excerpt from the announcement:
We are pleased to announce that Samantha Barbas, Professor of Law at the UB School of Law, has been named director of the Baldy Center. Professor Barbas will be bringing to the Baldy Center her expertise in legal history and mass communications law. Barbas earned a Ph.D. in American History from the University of California, Berkeley, as well as a J.D. from Stanford Law School. She joined the UB Law Faculty in 2011, where her research acumen has been recognized, including a University at Buffalo Exceptional Scholar award in 2016. Barbas is the author of five books on American history topics, including three interdisciplinary works of legal history: Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015); Newsworthy: The Supreme Court Battle over Privacy and Press Freedom (Stanford University Press, 2017); and most recently, Confidential Confidential: The Inside Story of Hollywood’s Notorious Scandal Magazine (Chicago Review Press, 2018). Her current research project is a biography of civil liberties lawyer Morris Ernst (University of Chicago Press, forthcoming).
Congratulations to Professor Barbas and to the Baldy Center!

-- Karen Tani

Wednesday, June 26, 2019

UC Berkeley Seeks New Director for Center for the Study of Law & Society

The Center for the Study of Law and Society (CSLS) at the University of California, Berkeley School of Law has issued a call for applications for a new full-time Executive Director.

CSLS "supports theoretically-based, empirical research on new developments at the interplay of law and society in contemporary and historical contexts." Technically part of the law school, it also "fosters a multi-disciplinary context in which UC Berkeley faculty and graduate students from many departments interact and engage with visiting socio-legal scholars from universities in the United States and abroad."

More information about the position is available here.

Zietlow on Slavery, Liberty and the Right to Contract

Rebecca E. Zietlow, University of Toledo College of Law, has posted Slavery, Liberty and the Right to Contract, which is forthcoming in the Nevada Law Journal 19 (2019): 447-478:
This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract.

Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract,
---Dan Ernst

Smiley on the Ottoman Empire, Russia, and International Law

Will Smiley, Reed College published From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law with Oxford University Press in 2018. From the publisher: 
From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law (The History and Theory of International Law)The Ottoman-Russian wars of the eighteenth century reshaped the map of Eurasia and the Middle East, but they also birthed a novel concept--the prisoner of war. For centuries, hundreds of thousands of captives, civilians and soldiers alike, crossed the legal and social boundaries of these empires, destined for either ransom or enslavement. But in the eighteenth century, the Ottoman state and its Russian rival, through conflict and diplomacy, worked out a new system of regional international law. Ransom was abolished; soldiers became prisoners of war; and some slaves gained new paths to release, while others were left entirely unprotected. These rules delineated sovereignty, redefined individuals' relationships to states, and prioritized political identity over economic value. In the process, the Ottomans marked out a parallel, non-Western path toward elements of modern international law. Yet this was not a story of European imposition or imitation-the Ottomans acted for their own reasons, maintaining their commitment to Islamic law. For a time even European empires played by these rules, until they were subsumed into the codified global law of war in the late nineteenth century. This story offers new perspectives on the histories of the Ottoman and Russian Empires, of slavery, and of international law.
 Praise for the book: 

"This is an extensively detailed history of Ottoman Turkish relations primarily but not entirely with...the Russian Empire, the Hapsburgs, and the West, dealing with the numerous wars in which it was involved between 1700 and 1876...Recommended" -- CHOICE

Further information is available here.

--Mitra Sharafi

Tuesday, June 25, 2019

The Art of Being Duped

Tomorrow at 11, Edward Balleisen, Duke University, the author of Fraud: An American History from Barnum to Madoff, will be on Big Little Lies: The Art Of Being Duped, a segment of the nationally syndicated public radio show 1A.

---Dan Ernst

Gouzoules on the Right(s) to Bear Arms

Alexander Gouzoules, a 2014 graduate of the Harvard Law School, has posted The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context, forthcoming in the University of Alabama Civil Rights and Civil Liberties Law Review 10 (2019): 159-199:
This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society.

This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed.
--Dan Ernst.  H/t: Legal Theory Blog