Monday, March 4, 2024

ASLH Early Career (Virtual) Legal History Workshop

We have the following announcement from the American Society for Legal History:

ASLH Early Career (Virtual) Legal History Workshop

Deadline for Applications:  June 30, 2024 

The American Society for Legal History (ASLH) is delighted to announce a new virtual initiative – the Early Career (Virtual) Legal History Workshop – designed to provide support and intellectual community to early career scholars working in legal history, broadly defined. 
 
Applications are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs (those working toward a JD/PhD must have completed the PhD).  Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are scholars who may not (yet) identify as legal historians. Though time zones present a challenge, one of the goals of the ASLH’s virtual initiatives is to increase opportunities for engagement between international and U. S. based scholars.  With this in mind, we encourage international scholars to apply.
 
The committee (the ASLH Working Group for Virtual Initiatives) will select seven (7) Fellows for the 2024-25 workshop. The workshop will be limited to the Fellows and Faculty Chairs and will meet once monthly via Zoom from September through April (no meeting in October because of the Annual Meeting) giving each fellow an opportunity to share work-in-progress with the group for discussion and feedback.  The 2024-25 Early Career LHW will be chaired by Bhavani Raman, Associate Professor of History, University of Toronto, and Dan Sharfstein, Dick and Martha Lansden Chair in Law and Professor of History, Vanderbilt University.  The date and time of the monthly workshops will be established by the Faculty Chairs. Fellows must commit to participate for the full academic year.
 
Elements of Application
(1) Cover Letter (1 page) (the cover letter should address the following points: briefly describe your research and path to the project, note the intended result (book/article/other) and the stage of the project, explain your interest in being part of the 2024-25 workshop, and note your time zone (UTC) and range of flexibility for meeting);
(2) Curriculum Vitae (2 pages) (including education and degree dates, current appointment, publications and conference papers, and professional society affiliations);
(3) Proposed Paper Title and Abstract (up to 100 words);
(4) 1 Letter of Recommendation (the letter should be from someone who knows you and your work well and who can comment on how you would benefit from and contribute to the workshop community).
 
Applicants should submit items 1-3 in a single pdf.  And arrange to have the letter of recommendation submitted directly. 
 
All application materials should be sent to Barbara Welke, welke004@umn.edu
The deadline for applications is June 30, 2024.  Only complete applications will be considered.
 
Questions? Write to Barbara Welke welke004@umn.edu

-- Karen Tani

Saturday, March 2, 2024

Weekend Roundup

  • Christian R. Burset discusses his book, An Empire of Laws: Legal Pluralism in British Colonial Policy in a New Books Network podcast. Taisu Zhang reviews Professor Burset's article, "Redefining the Rule of Law: An Eighteenth-Century Case Study," on Jotwell.
  • Colorado Law has published a profile of the legal historian Jonathon Booth (Colorado Law).
  • The result of the latest election of the Organization of American Historians is in.  Congratulations to President-Elect Annette Gordon-Reed and Vice President Marc Stein.
  • Ray Brescia, Albany Law School, discusses his new book, Lawyer Nation: The Past, Present, and Future of the American Legal Profession, on the ABA Journal’s Modern Law Library podcast.
  • Women’s Rights & Citizenship: A History of Women Jurors, by Helen Allen Nerska (New York Almanack). 
  • “The latest episode of the A Minute In New York History podcast tells the story of the 1839 La Amistad Rebellion” with the help of Marcus Rediker (New York Almanack).
  • Paola Zichi, British Academy Postdoctoral Research Fellow at the Warwick Law School, present on feminism and “the so-called ‘historical turn’ in international law” in the Law and Methods Seminar at SciencesPo Law School last Thursday.  More.
  • ICYMI: Black family history and Civil War pension records (NYT).  "Tradition" is "too amorphous and manipulable a criterion” for constitutional adjudication, a federal judge argues (NYT).  John A. Lupton, Illinois Supreme Court Historic Preservation Commission, on Myra Bradwell (Illinois Courts).

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

Friday, March 1, 2024

Boyer and Nicholls's "Rise and Fall of Treason in English History"

Allen Boyer, formerly senior appellate counsel at the New York Stock Exchange Enforcement Division and the author of Sir Edward Coke and the Elizabethan Age (Stanford University Press) and Mark Nicholls, a Fellow of St. John’s College, Cambridge, have published The Rise and Fall of Treason in English History (Routledge):

This book explores the development and application of the law of treason in England across more than a thousand years, placing this legal history within a broader historical context.

Describing many high-profile prosecutions and trials, the book focuses on the statutes, ordinances and customs that have at various times governed, limited and shaped this worst of crimes. It explores the reasons why treason coalesced around specific offences agreed by both the monarch and the wider political nation, why it became an essential instrument of enforcement in high politics, and why, over the past three hundred years, it has gradually fallen into disuse while remaining on the statute book. This book also considers why treason as both a word and a concept remains so potent in wider modern culture, investigating prevalent current misconceptions about what is and what is not treason. It concludes by suggesting that the abolition or 'death' of treason in the near future, while a logical next step, is by no means a foregone conclusion.

The Rise and Fall of Treason in English History is a thorough academic introduction for scholars and history students, as well as general readers with an interest in British political and legal history.
--Dan Ernst

Thursday, February 29, 2024

Rose on Property in the Merchant of Venice

Carol M. Rose, University of Arizona James E. Rogers College of Law, has posted Property and Literature: the View From Shakespeare’s Venice, which is forthcoming in The Elgar Concise Encyclopedia of Law and Literature, ed. Robert Spoo and Simon Stern (2024).

Merchant of Venice (1955) (NYPL)
This entry explores property issues in The Merchant of Venice, and in particular the Merchant’s posture toward important claims that have been made for property since the Enlightenment: that secure property enhances social wealth, that property protects individual autonomy, and that property permits the projection of personal projects in the world. The conclusion is that Merchant critiques each from the perspective of considerably older views of the role of property in society. The entry also discusses another claim for property and commerce that some have found in Merchant—that property and commerce soften manners and promote cooperation--but concludes that Merchant does not address that claim despite its setting in the then highly commercial city of Venice.
--Dan Ernst

Bloch, "Students for Fair Admissions v. Harvard (2023) and the Memory Wars"

Ofra Bloch (Tel Aviv University - Buchmann Faculty of Law) has posted "Students for Fair Admissions v. Harvard (2023) and the Memory Wars." Here's the abstract:

This article adds to the growing body of scholarship addressing the aftermath of the Supreme Court's decision in Students for Fair Admissions v Harvard (SFFA) that effectively ended race-conscious affirmative action in college admissions as we know it. In contrast to this literature dedicated primarily to exploring the practical implications of the decision, the distinct focus of this Article is on the historical narrative constructed by the SFFA’s majority and its impact on the constitutional memory of race and racism. The article makes three key contributions: Firstly, it demonstrates how the SFFA majority opinion distorts collective recollections of racism, akin to bans on Critical Race Theory, undermining racial redress legitimacy. Secondly, it analyzes the amicus curiae briefs in SFFA to uncover how universities and other proponents of affirmative action participated in forming the ahistorical narrative that was ultimately adopted and applied by the SFFA majority. Finally, the article proposes strategies for reshaping collective memories at the grassroots level. Somewhat paradoxically, I argue that the current composition of the Court presents an auspicious opportunity to prioritize reclaiming diversity in ways that reflect past and present racial experiences in America, rather than solely focusing on strategies aimed at appealing to conservative justices. 

The full paper is available here.

-- Karen Tani

Wednesday, February 28, 2024

Morris L. Cohen Student Essay Competition

 [We have the following announcement.  DRE]

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with The Lawbook Exchange, Ltd., announces the Fourteenth Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $1,000.00 prize from The Lawbook Exchange, Ltd., and will be invited to present their paper to AALL members via webinar.

Winning and runner-up entries will be invited to submit their entries to UNBOUND: A Review of Legal History and Rare Books, the official journal of LH&RB. Past winning essays have gone on to be accepted by journals such as N.Y.U. Law Review, American Journal of Legal History, University of South Florida Law Review, William & Mary Journal of Women and the Law, the Yale Journal of Law & the Humanities, and French Historical Review.

The entry form and instructions are available at the LH&RB website. Entries must be submitted by 11:59 p.m., May 15, 2024 (EDT).

Please direct questions to Linda K. Tesar, Chair, Morris L. Cohen Student Essay Competition Committee, lktesar@wm.edu.

Balkin's "Memory and Authority"

Jack M. Balkin, Yale Law School, has published Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press):

Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court’s current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Jack M. Balkin argues that fights over constitutional interpretation are often fights over collective memory. Lawyers and judges construct—and erase—memory to lend authority to their present-day views; they make the past speak their values so they can then claim to follow it. The seemingly opposed camps of originalism and living constitutionalism are actually mirror images of a single phenomenon: how lawyers use history to adapt an ancient constitution to a constantly changing world.
 
Balkin shows how lawyers and judges channel history through standard forms of legal argument that shape how they use history and even what they see in history. He explains how lawyers and judges invoke history selectively to construct authority for their claims and undermine the authority of opposing views. And he elucidates the perpetual quarrel between historians and lawyers, showing how the two can best join issue in legal disputes. This book is a sweeping rethinking of the uses of history in constitutional interpretation.
--Dan Ernst

Tuesday, February 27, 2024

Artists and the Law in Baroque Rome at UAM

[With help from an automatic translator, we have the following announcement.  DRE]

The next session of the Coloquios Historia Derecho at the Universidad Autnóma de Madrid will take place on Wednesday, March 6, at 3:00 p.m., in Seminar VIII of the Faculty of Law.

Professor Antonia Fiori (Università degli studi di Roma – La Sapienza), will speak about her research on artists' contracts in Baroque Rome, with the presentation titled “ Rome wasn't built in a day: Artists and the Law in Renaissance and Baroque Rome.”  More information on the Ccolloquim is here.

To connect via Zoom: Meeting ID: 829 1079 8716 / Passcode: 609743

The next session, taught by Professor María Teresa Calderón, will now be held on March 22.

ASLH Deadline Approaching

[The Program Co-Chairs for this year’s annual meeting of the American Society for Legal History have made the following announcement.   DRE]

A friendly reminder that the deadline for panel proposals for this fall's Annual Meeting in San Francisco is rapidly approaching (March 15).  Information on how to build a successful panel can be found here.
 
Only complete panel proposals will be accepted, with the exception of the session on Digital Legal History (which welcomes individual submissions). Scholars looking to build a panel may post their potential paper topics here. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All proposals should be submitted through the Confex platform.
 
We look forward to seeing you in San Francisco!

Karen Tani & Rowan Dorin (Program Committee Co-Chairs)

Kamin on the "Great Writ of Popular Sovereignty"

William M. M. Kamin, Catholic University of America, Columbus School of Law, has posted The Great Writ of Popular Sovereignty, which is forthcoming in the Stanford Law Review:

American habeas corpus, long conventionally known as the Great Writ of Liberty (“GWL”), is more properly understood as the Great Writ of Popular Sovereignty (“GWPS”): a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will. Once we grasp this conceptual shift, the implications for the law of habeas are profound.

In the past fifteen years, novel archival research has shown the GWL’s founding myth to be ahistorical – that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law. Given widespread consensus that (1) English history should and does drive American habeas jurisprudence and (2) the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to the GWL mythos. Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and immensely wasteful. Over the Supreme Court’s past three Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of “general criminal jurisdiction” – and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.

An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as GWPS. And by following that imperative, we just might save American habeas jurisprudence from its present crisis. Most critically, a theory of GWPS would illuminate the flaws in Justice Gorsuch’s historical argument for gutting postconviction habeas. Paradoxically, shifting from the conceptual lens of GWL to that of GWPS would yield habeas doctrine more effective in protecting individual liberty. Finally, such a shift would bring coherence to otherwise-inscrutable questions in the theory and doctrine of American habeas.

--Dan Ernst

Monday, February 26, 2024

Gage to Discuss Hoover at GW Law

GW Law announces a public event on a certain alumnus, J. Edgar Hoover (LL.B. 1916; LL.M. 1917).  Professor of Practice Jonathan Cedarbaum moderates a conversation with Beverly Gage, Yale University and winner of the Pulitzer Prize for Biography on Wednesday, February 28, 12:05-1:30, in its Burns Moot Courtroom.  Refreshments will be served.  RSVP to nsla@law.gwu.edu.

--Dan Ernst

Rights without Borders? Subjects, Precarity, Agency

 [We have the following announcement.  DRE.  H/t: H-Law.]

"Rights without Borders? Subjects, Precarity, Agency," the 9th International Osnabrück Summer Institute on the Cultural Study of the Law (OSI) will be held from July 6 to 14, 2024 at Osnabrück University, Germany. It aims to encourage and further promote the interdisciplinary study and research of the interrelations between law and culture, based on the idea that the extended cultural study of the law will foster productive scholarly exchange and dialogue between legal studies and the humanities.

The 2024 OSI will concentrate on key issues and debates within contemporary cultural legal studies, exploring questions related to, for instance, rights in general, legal personhood and citizenship, human rights, and the rights of migrants. We are interested specifically in the following:

  • The historical evolution of predominant (legal) concepts of rights, human rights, and legal personhood, regarding current debates on culture as an abiding discourse that enables legal subjectivity and rights claims, as much as it offers a resource for legal critique.
  • The cultural presence and portrayal of the law and the influence of culture in depicting and disseminating concepts of rights, human rights, ownership, appropriation, dispossession, etc. (e.g., in fields such as law and literature, critical humanities, life writing and human rights, philosophy of human rights, migration and rights).
  • How the (cultural and historical) semantics of rights, human rights, and legal personhood manifest in critical theory and discourse, exploring the application of rights theory in the humanities and critical cultural studies.
  • How a precarious legal status or a flexible approach to legal personhood, both historically and in current debates, facilitates critical discussion on (human) rights and our understanding of their nature and scope (how or whether they might be claimed by people on the move, enslaved people, indigenous peoples, stateless people, women, LGBTQ+ individuals etc.).

The OSI brings together leading scholars in the field of cultural legal studies with international graduate students from the humanities, legal studies, the social and political sciences, art, and history to create a rare opportunity for the comparative study of law and culture and their complex interrelation. The Institute will offer a combination of thematic workshop sessions, small group seminars and a concluding conference which will focus on key issues and debates in current cultural legal studies. lt will offer placements for up to 20 international participants (doctoral, post-doctoral and advanced M.A.).

Confirmed faculty for the 2024 OSI include:
Jeannine DeLombard (English and History / UC Santa Barbara)
Leila Neti (English and Postcolonial Literature / Occidental College, LA)
Leti Volpp (Law / UC Berkeley)
Bryan Wagner (English / UC Berkeley)
Marco Wan (Law / U of Hongkong)

Eligibility
.  The Summer Institute invites doctoral and postdoctoral students from various academic fields whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture.

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are encouraged to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. While applications by doctoral/post-doctoral students are prioritized, the Summer Institute will also consider strong applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research.

Application Process
.  Students interested in taking part in the Summer Institute should submit their applications no later than April 1st, 2024. Detailed and updated information about the Institute, the sessions, international faculty, admission and fees can be found [here].

Questions.  Please direct all inquiries and questions to the OSI coordinator.

Engstrom and Stone on Auto Culbs, UPL and A2J

Nora Freeman Engstrom Stanford Law School, and James Stone, at 2023 graduate of Stanford Law, have posted Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, which is forthcoming in the Yale Law Journal:

In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput.

Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. It then surveys the wreckage and shows that the collision’s impact continues to reverberate throughout the legal profession and law itself. For one, we show how the bar’s litigation campaign against auto clubs—as well as the era’s many other group legal service providers, including banks, unions, and homeowners’ associations—helped establish the so-called “inherent powers doctrine,” which cemented courts (not legislators) as the ultimate arbiters of legal practice regulation. The result was a profound power shift, with the authority to regulate legal services consequentially placed in politically insulated courts, not politically accountable legislators. More practically, the bar’s concerted campaign decimated a once-thriving system for the provision of group legal services to ordinary Americans, which, we argue, ultimately consigned millions of individuals with legal problems to face them alone, or not at all.

Finally, in the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.
--Dan Ernst

Sunday, February 25, 2024

Constitutional History in Iowa Public Schools

As an expatriate Iowan, who visited my Midwestern homeland as recently as President's Day weekend, I try to keep up abreast of how far the state's politics have traveled from those of my youth in Dubuque.  Usually, I don't burden LHB readers with reports, but a recent post by Rick Morain, formerly the publisher and owner of the Jefferson Herald, on the blog "Bleeding Heartland" on a bill in the Iowa legislature speaks to a general trend in primary and secondary public education.

House File 2544, which is available for floor debate, mandates topics that the state's social studies teachers would be required to cover at some point in grades five through twelve.  These include thirteen documents and six U.S. Supreme Court cases.  The thirteen documents are:

The Mayflower Compact
Common Sense, the essay published by Thomas Paine in 1776
The Declaration of Independence
The Articles of Confederation, adopted in 1777
The Pennsylvania Act for the Gradual Abolition of Slavery
The Virginia Statute for Religious Freedom
The Northwest Ordinance
The U.S. Constitution
The Federalist Papers, including Federalist No. 10 and Federalist No 51
Washington’s Farewell Address
relevant excerpts from Democracy in America by Alexis de Tocqueville
a transcript of the first Lincoln-Douglas debate
and The Emancipation Proclamation

Morain did not object to these, although he wondered about the opportunity costs, in light of the time needed to discuss them properly.  He also agreed that Iowa students should know about five of the six cases mandated by the bill: Marbury v. Madison, McCulloch v. Maryland, Dred Scott v. Sandford, Plessy v. Ferguson, and Brown v. Board of Education.  (He did not comment on the omission of one of Iowa's contributions to constitutional law, Tinker v. Des Moines Independent Community School District.)  He was stumped by a sixth case, however: Pembina Consolidated Silver Mining and Milling Company v. Pennsylvania (1888).  Upon inspection, he learned that it was a landmark in the granting of corporations the status of persons under the Fourteenth Amendment.  

The editor of the Bleeding Heartland pursued the matter by asking the bill's Republican sponsors about the bill but received no response.  A Democratic representative on the subcommittee that approved it reported that one of its sponsors mentioned the Civics Alliance and the National Association of Scholars in describing its origins.

The American Historical Association has opposed the bill in a letter to the Iowa House of Representatives. 

--Dan Ernst

Saturday, February 24, 2024

Weekend Roundup

  • John Mikhail, Georgetown Law, has a post up on Balkinization entitled A Reality Check on "Officers of the United States" at the Founding, in which he draws upon the research he conducted on the phrase in connection with his study of the Necessary and Proper Clause.  Much of the research he presents "has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson."
  • Rosemarie Zagarri and Holly Brewer argue that the anti-monarchical origins of the Constitution and the presidency do not support Former President Trump’s claim of immunity (Brennan Center).   
  • "The Department of History at the University of Alabama invites applications for a full-time Renewable Contract Instructor position. The appointment is for a three-year term with the possibility of renewal. The holder of the position will be expected to serve undergraduate teaching and advising needs in American history, with particular expertise sought in legal and/or constitutional history. Minimum qualifications include a PhD in History or related field. Position begins August 15, 2024."
  • On Wednesday, February 28, at 2pm ET , the FDR Library will livestream the first of five short films on civil rights that it will release this year, “created from interviews with our expert advisory panel for the Special Exhibit: Black Americans, Civil Rights, and the Roosevelts 1932-1962.”  This one “examines two critical Supreme Court cases that laid the groundwork for the civil rights movement of later decades.”  More.
  • Kathleen Ayers, a recently retired register of probate got Kennebec County, will lead the workshop "Maine's County Probate Courts," sponsored by the Greater Portland Chapter of the Maine Genealogical Society, on Saturday, March 2, at 1 p.m. and held online.  "Her session aims to demystify the complex world of probate records, offering attendees an overview of the treasures these documents contain."  Register via email at gpcmgsgmail.com (BNN).
  • Update: As it happens, the Fulton County Probate Court is similarly presenting A Night in the Archives on Wednesday, February 28 from 5:30 to 7:30 p.m (Fulton Neighbor). 

    Attendees can join historians, researchers, librarians, scholars, and preservationists as they explore historic probate records dating from 1847.

    The event will take place at the Historic Fulton County Courthouse, 136 Pryor Street, SW, second floor, Atlanta. The afterhours entrance is at 185 Central Avenue.
  • "U.S. Supreme Court Justice Stephen G. Breyer (Ret.) unveils his new book at the National Constitution Center in conversation with NCC President and CEO Jeffrey Rosen. In Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Justice Breyer deconstructs the textualist philosophy of the current Supreme Court’s majority and makes the case for a better way to interpret the Constitution" (NCC).
  • Kate Masur and Saladin Ambar discuss Lincoln's Lyceum Address in a webinar on March 12 from 7 to 8, hosted by the Lincoln Presidential Foundation.
  • That Congressional Briefing the American Historical Association hosted on “the history of the role and impact of sanctions as instruments of international relations” is now up on the AHA’s YouTube channel.
  • Ronald Collins discusses his new book, Tragedy on Trial: The Story of the Infamous Emmett Till Murder Trial, with Jason Downs at the Politics & Prose on Connecticut Avenue in Washington, DC, on Sunday, March 17, 2024, at 1:00pm.
  • "The latest issue of Historical Review, a publication of the Florida Supreme Court Historical Society, celebrates the 75th anniversary of the opening of the Florida Supreme Court’s building in Tallahassee” (Florida Bar News).
  • Via JOTWELL: Suja Thomas praises Thomas Framptom's article on The First Black Jurors and the Integration of the American Jury, 24 N.Y.U. L. Rev. __ (forthcoming, 2024)
  • ICYMI: Black History Is Inextricably Intertwined With American Legal History, says U.S. District Judge Curtis L. Collier  (Chattanoogan.com).  The US Postal Service dedicates a stamp to Constance Baker Motley (Columbia Law School).  U.S. Circuit Judge Kevin Newsom criticized the U.S. Supreme Court’s use of historical “tradition” to justify its constitutional opinions because it leaves “too much to individual judges' discretion" (Reuters). Austin Sarat on The Gas Chamber, 100 Years of Cruelty (Verdict).

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

Friday, February 23, 2024

Before Thurgood: America’s Forgotten Civil Rights Heroes

The Faulkner Law Review, in partnership with the Ernestine S. Sapp Chapter of the Black Law Students Association at Faulkner Law, is excited to announce the 2024 Fred Gray Civil Rights Symposium: Before Thurgood: America’s Forgotten Civil Rights Heroes. This event is sponsored by the National Black Lawyers Top 100 and the American Society for Legal History and will be held on March 15, 2024 from 8:30 a.m. to 3 p.m. inside the Faulkner University Rotunda.

This event has been approved by the Alabama State Bar for 5.3 hours of CLE credit, including 2.5 hours of ethics credit. Lunch will be provided. Register to attend [here].

This year’s presenters include:

"Lessons Learned From The Civil Rights Movement."  Hon. Jerusha T. Adams, United States Magistrate Judge for the Middle District of Alabama, Montgomery, AL

"Righting the Wrongs of the Past: The Posthumous Bar Reinstatement of Arthur Madison, Voting Rights Crusader."  Justice (ret.) John G. Browning, Distinguished Jurist in Residence, Thomas Goode Jones School of Law, Montgomery, AL, and Quinton S. Seay, Sr., Seay/Felton LLC, Atlanta, GA

"How Could That Happen in That Place at That Time? Wendell W. Gunn and the Desegregation of Florence State College."  Professor Matthew Schoenbachler, Professor of History and Interim Department Chair, University of North Alabama, Florence, AL, and Dr. Wendell Gunn, Board of Trustees, University of North Alabama, Florence, AL

"Contextualizing John S. Rock’s Ascent to the Supreme Court Bar."  Professor Christopher T. Brooks, Professor of History and Geography, East Stroudsburg State University, East Stroudsburg, PA

"Rails of Justice: Charles Hamilton Houston, Alabama Search for Equal Rights."  Professor José F. Anderson, Dean Joseph Curtis Professor of Law, University of Baltimore School of Law, Baltimore, MD

"Cornelius Jones: Forgotten Black Supreme Court Advocate and Fighter for Civil Rights in the Plessy Era."  James A. Feldman, Attorney at Law, Washington, DC

More information, here.

Graber on Insurrection in the 14th Amendment

Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section Three of the Fourteenth Amendment: Insurrection, which is forthcoming in the William & Mary Bill of Rights Journal:

The public and scholarly debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. One consequence of this omission in the popular press is the impression that what constituted an insurrection or engaging in an insurrection were not well defined in 1866, that the Reconstruction Republican framers largely jerry-rigged a vague understanding of insurrection into the Constitution.

This paper demonstrates that the constitutional/common law of insurrection was well established and well-understood in 1866. “Insurrection” at the time Section Three of the Fourteenth Amendment was framed and ratified “had a precise and well-understood meaning.” This understanding was articulated from the American Revolution to the Reconstruction by the Supreme Court, by Supreme Court justices riding circuit, by other federal justices, by state court justices, and by the leading legal treatise writers during the period between the ratification of the Constitution and Reconstruction. Clear standards exist from 1866 that enable state and federal officials to determine whether the persons responsible for Section Three of the Fourteenth Amendment would have thought the events of January 6. 2021 were an insurrection and whether Trump engaged in that insurrection.

The Congressional Globe, case survey, and constitutional commentaries clearly support the following conclusions. First, an insurrection at the time Section Three was framed consisted of an assemblage resisting the implementation of any law by force, violence and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Second, the events of January 6, 2021 are consistent with the legal understanding of insurrection in 1866. Third, constitutional authorities before, during and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection was engaged in that insurrection, even if that person did not personally commit an act of violence or was far from the scene of the violence, force, and intimidation. Fourth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and state decisions disqualifying Trump are true, the former president participated in the insurrection that took place on January 6, 2021.

Congress relied on this consensual understanding of insurrection when framing the Second Confiscation Act of 1862. The Senators who insisted that Section Two of that measure punish persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States” stated that they were not altering the law of treason and insurrection by describing separate offenses. Section Two was rooted in part by a misinterpretation of judicial decisions that some Senators believed required they spell out what they believed constituted insurrectionary behavior and in part because no one wanted all participants in the Civil War to be executed for treason. If members of the Thirty-Seven Congress would have thought that an insurrection took place on January 6, 2021 and Trump participated in that insurrection, then those members of the Thirty-Ninth Congress who framed Section would have though disqualified from holding public office in the United States.
--Dan Ernst

Thursday, February 22, 2024

Tate on Magna Carta and Fundamental Rights

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Magna Carta and the Definition of Fundamental Rights, which is forthcoming in the Tulsa Law Review:

The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.
--Dan Ernst

Wednesday, February 21, 2024

Israeli Legal History Bibliography

[We have the following announcement.  DRE.]

The David Berg Foundation Institute for Law and History at the Tel Aviv University Faculty of Law maintains a bibliography of secondary sources on Israeli legal history. We are currently embarking on another round of updates (the last was in 2020), and we would welcome help in bringing publications, whether new or previously overlooked, to our attention.

We are looking for publications, in any language, with a substantial connection to the legal history of Israel, beginning with the late Ottoman period (from c. 1800) up to the year 2000. If you work in the field, we'd appreciate your looking over the current list and sending us bibliographic information on any sources we're currently missing.

Please send information on sources or any questions to Ms. Asil Sager (asilsager25@gmail.com) or to berg@tauex.tau.ac.il.

[H/t: H-Law]

Tuesday, February 20, 2024

Benton to Deliver Inaugural Dean's Lecture at Edinburgh Law

Former ASLH President Lauren Benton, the Barton M. Biggs Professor of History and Professor of Law at Yale University, will deliver the inaugural Dean’s Lecture at the Edinburgh Law School, University of Edinburgh, On Wednesday, 13 March 2024, 17:00 - 18:30 GMT, at the Law School’s Usha Kasera Lecture Theatre.  “A world renowned historian of law and empire, her lecture will draw on many of the themes explored in her new book They Called it Peace: Worlds of Imperial Violence.”  Register for ticket's here.

 Yale Law's notice of the book is here.

--Dan Ernst

Monday, February 19, 2024

The Julien Mezey Dissertation Award

 [We have the following announcement.  DRE]

The Association for the Study of Law, Culture, and the Humanities is excited to announce that we are accepting submissions for the Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture and the humanities.

The Association seeks the submission of outstanding work from a wide variety of perspectives, including but not limited to law and cultural studies, law and critical race studies, law and gender and sexuality, legal theory and environmentalism, law and literature, law and psychoanalysis, law and visual studies, legal history, legal theory and jurisprudence. Scholars completing humanities-oriented dissertations in SJD and related programs, as well as those earning PhDs, are encouraged to submit their work. Applicants eligible for the 2024 award must have defended their dissertations successfully between March 2023 and March 2024.

The Association will cover the Mezey Prize winner’s travel and lodging costs to our annual meeting.  Nominations for the 2024 award must be received on or before March 15, 2024.  For submission instructions, please see our website.

Saturday, February 17, 2024

Weekend Roundup

  • Now on YouTube: the National Constitution Center’s panel on “the history of the African American fight for freedom during the Civil War and Reconstruction periods”  Edda Fields-Black and James Oakes were panelists.  Thomas Donnelly of the NCC moderated.
  • The Union County Board of County Commissioners is hosting Gibbons v. Ogden: Its Continuing Importance 200 Years Later with Edward Hartnett, Seaton Hall, on Tuesday, March 4th from 12:30 p.m. until 1:30 p.m. "at the Courtroom of Honorable Lisa Miralles Walsh (A.J.S.C.) on the 1st Floor Tower of the Union County Courthouse, located at 2 Broad Street, Elizabeth." 
  • Last semester, in the  course titled “Research Methods in Judicial History,” Yale students "had the opportunity to delve into the working papers of former Supreme Court Justice Potter Stewart ’37 LAW ’41 (Yale Daily News).
  • This season in the Institute for Justice's podcast series Bound by Justice is devoted to property cases, including "a tour of the house at issue in Pennsylvania Coal v. Mahon" and three pods on the history of zoning."
  • ICYMI: "Of Course Presidents Are Officers of the United States," says Mark Graber (The Atlantic).  Mug commemorating real-life crime 1823 style flies to 10 times estimate (Antiques Trades Gazette).  John Q. Barrett on Cardozo's quip (SSRN). How a 1924 Immigration Act Laid the Groundwork for Japanese American Incarceration: An Interview with Mae Ngai (Smithsonian).

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

Friday, February 16, 2024

Literary–Legal Imagining: An Early Modern Workshop

[We have the following announcement.  DRE.]

Literary–Legal Imagining: An Early Modern Workshop. 11 March 2024. 10.30am – 6.00pm.  New College, Oxford & St John’s College, Oxford.

Literary-Legal Imagining is a one–day workshop, hosted by New College and St John’s College, and supported by [the Centre for Early Modern Studies] and the English Faculty. This workshop will explore the kinds of research questions that arise from the pervasive overlapping of the legal and the literary in early modern life and texts.

Current doctoral students and recently doctored ECRs will present examples from their work-in-progress, stimulating discussion of how early modernists might approach the legal–literary interface. It will showcase the vibrancy of current work in the law and literature movement and highlight new directions for research in the interstices between these two disciplines.

Speakers: Alex Laar (Oxford); Jonathan Powell (Leiden); Dan Haywood (Oxford); Herin Han (Oxford); and Jake Wiseman (UCL). A keynote will be given by Lotte Fikkers (Leiden), with Lorna Hutson (Oxford) acting as a respondent.

The workshop will be in two parts. In the morning session, Alex Laar will give a paper on ‘Sir Thomas Smith’s Legal Annotations’ at New College Library. At this session, there will be an opportunity to examine annotations made in sixteenth–century lawbooks in New College’s Special Collections.

After lunch at St John’s, there will be two panels and a keynote, with breaks between and time for Q & A at each. The first panel, on ‘Gender, Scripture and Legal Imagining’ will feature papers by Jake Wiseman and Herin Han. The second, on ‘Common Law and Literary Genre’ will feature papers by Dan Haywood and Jonathan Powell. Finally, Lotte Fikkers will give a keynote paper on early modern women’s life-writing in law and literature, with a response from Lorna Hutson and a round-up discussion.

The workshop will conclude with a drinks reception at St John’s.

Registration is free but essential for catering purposes. If you would like to attend, please contact daniel.haywood@sjc.ox.ac.uk to register by 28 February 2024.

Timetable and key information [after the jump]:

JACH (Winter 2024)

The Winter 2024 issue of the Journal of American Constitutional History has just been published.  Here is the TOC:

Today’s Brandeis Brief? The Fate of the Historians’ Brief Amidst the Rise of an Originalist Court, by M. Henry Ishitani

Despite their significantly higher overall citation rates than comparable forms of amicus briefings, historians’ amicus briefs to the Supreme Court have been a surprisingly overlooked and under-studied legal tactic. This article attempts to correct this gap in our understanding of this subgenre of history-based briefing, revealing the hard data and political trends shaping these judicial citations.

Symposium: Dobbs, History, and Abortion Rights

No recent constitutional issue has raised a more significant moment for historical intervention than a woman’s right to obtain an abortion. The following symposium, organized by Professors Mary Ziegler and David Schwartz, takes a hard look at the historical questions surrounding Dobbs v. Jackson Women’s Health Organization.

Abortion-Eugenics Discourse in Dobbs: A Social Movement History, by Reva B. Siegel & Mary Ziegler

To win over new supporters and counter equality arguments of the abortion-rights movement, the antiabortion movement began to equate the abortion-rights movement with the painful legacy of eugenics perpetrated by the state in the early twentieth century. This essay traces the movement dynamics that led to the creation of this argument, and then follows this abortion-is-eugenics argument from billboards to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

The Wages of Crying Roe: Some Realism about Dobbs v. Jackson Women’s Health Organization, by Neil S. Siegel

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was based upon moral opposition to abortion and gender bias, instead of its stated reasoning—a draconian version of the “history and tradition” test.

Dobbs v. Brown, by Andrew Coan

The ongoing debate over the Dobbs majority’s attempt to claim the mantle of Brown v. Board of Education has many threads. This Essay will focus on three—stare decisis, the interpretive method, and Herbert Wechsler’s famous “neutral principles” critique— none of which is as clear-cut as the defenders or the critics of Dobbs have supposed.

The Critical Role of History after Dobbs, by Serena Mayeri

Though the Dobbs majority’s argument relies on a flawed and impoverished account of “history and tradition,” history remains relevant to constitutional law and political discourse about reproductive rights and justice, and is critical to our understanding of our political community today.

--Dan Ernst

Thursday, February 15, 2024

Prévost to Lecture on Renaissance Jurists

The Edinburgh Law School’s Centre for Legal History will host a talk with Xavier Prévost, Professor of Legal History at the University of Bordeaux, on 10 May. Professor Prévost will lecture on "The Encyclopedism of Renaissance Humanist Jurists."  Register here.

The expression “Legal humanism of the Renaissance” refers to the movement that emerged from the full integration of law into humanist knowledge, which began at the turn of the 15th and 16th centuries. Starting with a critique of medieval scholasticism for the study of legal texts, this intellectual movement proposed new methods for producing legal ideas based on an encyclopedic approach. Although there were many methodological differences between the legal scholars grouped under the banner of humanism, they shared the conception of a legal science that is not closed in on itself. Thus, they applied to law the humanist idea that knowledge forms a vast body made up of elements that may be intellectually differentiated, but which remain interrelated: the understanding of one of these elements must therefore logically call upon all those related to it. Not only did these scholars master the legal sources (Roman law, canon law, customs, royal legislation, court decisions, etc.), but they constantly referred to history and geography, philosophy and theology, philology and rhetoric, literature and poetry, mathematics and architecture, agronomy and astronomy.

The encyclopedism of Renaissance humanist jurists then caused an upheaval in the understanding of law, while participating massively in the production of knowledge beyond legal ideas. Presenting such an approach can contribute to the current debate which, faced with the extreme compartmentalisation of disciplines and even a growing separation between legal branches, is calling for greater use of interdisciplinarity.

--Dan Ernst.  (H/t: Scottish Legal News.)

Wednesday, February 14, 2024

Allen on Hand on Moral Turpitude in Immigration

It's gated, but interesting: Jak Allen has published What Is a “Moral” Citizen? Learned Hand and the Judicial Role for Defining Immigrant Morality Tests, 1929–61, in American Political Thought 13:1 (Winter 2024):

Learned Hand (LC)
“Good moral character” and acts of “moral turpitude” remain significant US standards for citizenship hopefuls and potential deportees. However, there is little scholarship examining whether morality standards have been used as effective exclusionary tools in the history of US immigration law. This article addresses this incomplete picture by raising topical questions about democratic process in lawmaking and prompting historical reassessment of moral expectations as barriers to immigration. It highlights the leading role of federal appellate judge Learned Hand in exposing the interpretive challenges that moral-based standards presented to courts in the early to mid-twentieth century. The article argues that Hand attempted to reduce the discretionary scope of judges by relying on society’s “common conscience” to decide legal disputes in this deeply subjective field of law. However, in applying this more layered, context-specific view of moral standard, Hand also exposed flaws in his own philosophical adherence to judicial restraint.

--Dan Ernst

Tuesday, February 13, 2024

Honoring Charles Hamilton Houston at New York Law

On Tuesday, February 20, 2024, from 12:45 p.m. to 2:00 p.m., New York Law School will observe Black History Month with Honoring Legal Icon Charles Hamilton Houston:
José F. Anderson, Dean Joseph Curtis Professor of Law at the University of Baltimore School of Law, will join Kirk Burkhalter, Professor of Law and Director of the 21st Century Policing Project, for a conversation discussing Charles Hamilton Houston’s enduring legacy as a lawyer, educator, and civil rights activist. The event will be moderated by John Marshall Harlan II Professor of Law and Director of the Racial Justice Project Penelope Andrews.

--Dan Ernst

Monday, February 12, 2024

Kroncke on Labor in the American Empire

Jedidiah J. Kroncke, University of Hong Kong, has posted Suspended in Empire: The Imperial Legacies of American Territorial Labor:

On the Trail, Northern Luzon, 1924 (LC)
A great deal of recent attention has been giving to acknowledging the full historical scope of American empire and its legal foundations. A recurrent focus of this attention has been the impact of the Insular Cases—a set of early 20th-century doctrines that legitimate American territorial acquisitions while denying their full incorporation under the Constitution. Issues of political citizenship and property have thus predominated critical work on the Insular Cases.

This article expands on this resurgent interest by focusing on another critical element of this acknowledgment: the history of territorial labor which has long been central to the political economy of American empire. Explicating the role and regulation of territorial labor reveals enables of more complete picture of American empire, as well as its evolving pursuit of new legal forms to project national power while avoiding democratic accountability.

Most concretely, the unprincipled doctrines of the Insular Cases have led to a paradigm of perpetually precarious bargaining in which territorial labor only enjoys the formal protection of labor and employment law subject to complete federal discretion and potential revocation. Mapping the diverse and contingent legal regimes this bargaining has produced unearths all too many tragedies past and present as the largely invisibilized labor of territorial people has been circulated throughout American empire while building its economic and military foundations.

Further complicating this formally inchoate set of rights are the practical realities territorial labor has historically been subject to under conditions of American empire: localized employer domination, tactics of racialized labor migration, and the overshadowing anti-democratic disciplinary rationales of U.S. national security. These realities are evident throughout the diverse range of contemporary territories as well as in their scarring effects within former American territories and military occupations. Moreover, imperial labors’ roaming logics of dehumanization are today increasingly displaced onto even more vulnerable foreign migrant workers within many territories themselves.

Acknowledging the role of territorial labor in American empire blurs the line between territorial and incorporated life and law. Most powerfully, it reveals how the conditions of territorial labor reflect back the enervated nature of American economic citizenship writ large. This reflection is just one of the many ways in which territorial history presents lessons increasingly applicable to broader swaths of American life under conditions of modern economic globalization. The article ultimately integrates territorial history into renewed demands for a democratic political economy for all those living under American sovereignty.

--Dan Ernst

YLS Seminar on the History of Latin American Law

On Wednesday, February 14, 2024, from 2:00 - 6:00 PM, in Room 124 of the Yale Law School, YLS’s Schell Center for International Human Rights and the Max Planck Institute for Legal History and Legal Theory is sponsoring a symposium, History of Latin American Law:

The event aims to present and discuss the book [The Cambridge History of] Latin American Law in Global Perspective recently published by Cambridge University Press. The book, edited by Tamar Herzog and Thomas Duve, brings together sixteen articles written by scholars from Latin America, Europe, and the United States on the history of Latin American law. The event will be structured around two panels. In the first one, panelists will examine the theoretical and methodological commitments of the book. In the second one, panelists will analyze three topics that cut across the volume: cultural minorities, legal pluralism, and the relationship between law and State.
Here is the program.  Space is limited.  Registration is required.

–Dan Ernst

Saturday, February 10, 2024

Weekend Roundup

  • Stephen J. Pollak (credit)
    Stephen J. Pollak died a week ago.  He was Assistant Attorney General for the Civil Rights Division during Lyndon Johnson's administration, a long-time partner at the Washington law firm of Shea & Gardner, and an imaginative, dedicated, and extremely thoughtful President of the Historical Society of the District of Columbia Circuit, the kind of lawyer a legal historian dreams of working with but rarely finds.  Here is the in memoriam page of the Lawyers Committee for Civil Rights Under Law.  He gave an oral history to the Historical Society of the DC Circuit, which I've previously described here.  He gave another to the LBJ Library.  DRE
  • From the Osgoode Society for Canadian Legal History: "Former Supreme Court of Canada judge Ian Binnie will talk to the Osgoode Society about four prominent litigators whose careers [spanned] Canadian legal history from Confederation to the present: Oliver Mowat, W.N. Tilley, J.J. Robinette, and Ian Scott."  May 1, 2024 - 5:30 pm at Zoom.  Register here.
  • The Women’s and Gender Studies Institute and The Centre for the Study of the United States in the Munk School of Global Affairs & Public Policy at the University of Toronto has posted a notice for a Postdoctoral Fellow.  The co-taught course the fellow would teach may include “gender and the American legal system.”  More.  H/t: H-Law.
  • ICYMI:  "In today’s gun rights cases, historians are in hot demand" (OBP).   But "does racist history count"? (LA Times.)
  • Update: An panelists at an HLS symposium dispute the history of universal injunctions (Harvard Law Today).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 9, 2024

Heath on Chinese Boycotts

J. Benton Heath, Temple University Beasley School of Law, has posted Economic Sanctions as Legal Ordering:

This Article recovers a critical episode in the history of economic sanctions and considers its implications for world order today. Beginning in 1905, Chinese citizens launched a series of protests targeting American, British, and Japanese goods. These boycotts caused economic damage, disrupted international relations, and at times won significant political victories. At the same time, they captured the imaginations of peace advocates, lawyers, and scholars, who saw in the boycotts either a fundamental threat to legal ordering, a promising avenue for enforcing interstate peace, or, most radically, an engine for new kinds of political organization outside the typical forms of state and empire.

This Article argues that the debates over the early twentieth-century Chinese boycotts invite us to rethink the relationship between economic sanctions and legal ordering. Through historical and theoretical work, the Article demonstrates that boycotts were understood at the time as a form of insurgent legal ordering, which threatened the unity of the state-based legal system. Drawing on the history of the boycotts, this Article develops a theory of insurgent legal ordering. And it shows how lawyers of the period developed a response to this perceived threat that required states to centralize and control the means of economic warfare. The result not only sheds light on the history of economic sanctions, but also suggests a broader critique of the role of economic sanctions in the international legal order today.
--Dan Ernst

Thursday, February 8, 2024

Callahan on Woodbury Davis and Antislavery Constitutionalism

James Patrick Callahan, a third-year student at the Boston College Law School, has just published his note, Antebellum Enigma: Justice Woodbury Davis, the Maine Supreme Judicial Court, and the Antislavery Constitution, in the Boston College Law Review:

 In 1856, abolition activist Woodbury Davis joined the Maine Supreme Judicial Court (SJC) and quickly became its most radical member. Davis was an antebellum enigma: a high-ranking judge who advocated for Black voting rights, rejected the federal consensus that Congress could not pass laws interfering with slavery, denied that the Fugitive Slave Clause even applied to slaves, and believed that the Constitution was an engine for abolition. While Davis was on the SJC, the court issued advisory opinions on two of the most explosive issues in American politics: Black voting rights after Dred Scott v. Sandford and the Fugitive Slave Act. This Note explores the evolution of the law on slavery and race in the United States prior to the Civil War, focusing on Maine and the political pressures surrounding the SJC at that time. Next, this Note examines the SJC’s Voting Rights Opinion (1857) and the Personal Liberty Law Opinion (1861), focusing especially on Justice Davis’s novel constitutional arguments. Finally, drawing on these two cases, this Note argues that radical modes of antislavery constitutionalism were embedded in the American judiciary prior to the Civil War and evaluates the impact of this discovery on current debates in legal history.

--Dan Ernst

Wednesday, February 7, 2024

Eyer and Tani on the Role of Disability Cases in the Supreme Court's Federalism Revolution

I'm excited to announce the publication of an article that I've been working on for some time, along with co-author Katie Eyer (Rutgers Law). It is titled "Disability and the Ongoing Federalism Revolution," and has just been published in the Yale Law Journal (Volume 133, Issue 3). The article is largely legal history, but it also includes observations and predictions about the current Supreme Court. Here's abstract:

The Supreme Court’s “new federalism” revolution remains one of the most important developments in recent U.S. legal history. The Court revitalized “states’ rights” doctrines under the Tenth and Eleventh Amendments, rendering states partially or wholly immune from many types of federal litigation. Simultaneously, the Court retrenched the authority of national legislators—and aggrandized its own authority—by limiting what Congress may do under its Commerce Clause, Spending Clause, and Fourteenth Amendment powers.

But one important facet of this “new federalism” revolution has gone unappreciated: the load-bearing role of earlier disability-related cases. In the 1970s and 1980s, this Feature shows, the Court used disability-related cases to revive the all-but-moribund Eleventh Amendment, even as it declined to embrace Eleventh Amendment arguments in cases involving school desegregation and sex discrimination. So, too, it was disability cases that established and entrenched federalism-grounded “clear statement” rules of statutory interpretation in the 1980s and early 1990s. Likewise, a disability case in the early 1990s previewed the Court’s later diminution of Congress’s authority under Section 5 of the Fourteenth Amendment.

In crucial ways, we show, these disability precedents enabled the “new federalism” revolution of the late 1990s and early 2000s. Cases such as Seminole Tribe of Florida v. Florida (1996) could not have been reasoned as they were without earlier disability precedents. The real-world consequences have been striking: the disability-related cases we discuss—and the better-known “new federalism” cases that built on them—have reduced the enforceability of federal civil rights guarantees, threatened wide swaths of social welfare legislation, and diminished Congress’s ability to respond to pressing problems.

Moving forward, disability-related federalism precedents will remain important. Doctrines and language from these cases offer some of the best tools that state and local defendants have for extending the more dangerous facets of the “new federalism”—as evidenced by recent litigation in the lower courts involving voting rights and LGBTQ discrimination, among other high-stakes issues. Moreover, at the Supreme Court, disability cases have continued to provide the site for new retrenchments in Congress’s spending power, alongside robust assertions of the Court’s own authority. Thus, while conventional wisdom treats the “new federalism” revolution as a historical artifact, this Feature reveals such an assessment to be both perilous and premature.

The full article is available here.

-- Karen Tani