Roger Taney was born and raised in Maryland’s Black Belt, a region so committed to the institution of slavery that it sought to secede from Maryland and unite with slavery-entrenched Virginia. His first teachers included a well-credentialed, but unhinged man who so fervently believed that he, like Christ, could walk on water that he drowned in the attempt. Taney’s progenitors went from indentured servant to High Sheriff of Calvert County, whose duties included the “disposal” of the colonial Anglican church’s property of women, including free white women, and their mixed race children, and slaveholding landowner married into the illustrious colonial family of Francis Scott Key.--Dan Ernst
This grounding in white supremacy, slavery, and racial hatred followed Taney into his privileged rise through the Maryland legislature, into private practice, and then as Maryland attorney general and subsequently, as reward for his zealous support of Andrew Jackson in his rise to the Presidency, to the offices of U.S. attorney general, Secretary of Treasury, and finally, for almost thirty years, Chief Justice of the U.S. Supreme Court. During his long tenure as Chief Justice, the nation ran toward Civil War, and the Taney Court decided such monumental cases as the challenge of President Abraham Lincoln’s suspension of habeas corpus after a Maryland contemporary and acquaintance of Taney was arrested and held without charges for sabotage.
Roger B. Taney (LC)
No decision of the Taney Court is more reviled than that of Dred Scott v. Sandford, an opinion written by Chief Justice Taney and in which his familial, social, and legal history of white supremacy and racial hatred is unstintingly revealed. The final irony in the life of this infamous Chief Justice is that on his deathbed in Washington, D.C., he urgently condemned the voter suppression taking place on that day in a constitutional vote in Maryland.
Today in the Black Belt and elsewhere in the nation, Taney’s zombie of white supremacy, racial hatred, and segregation walks undead, its evil spirit inflamed by hateful politically-motivated rhetoric, the imprimatur of such speakers, and cultural hatred and ignorance, and by failures of many of the avowed religious to condemn and cast out those who abominate the strength of our national values and identity. From voter suppression in North Carolina to horseback sheriff deputies leading a roped black man down to the unexamined use of predictive algorithmic systems disparately impacting the poor and people of color in bail, detention, parole, and sentencing decisions, the spirit that imbued Taney’s Dred Scott opinion and animated his life’s values remains alive within the nation’s culture and legal system.
Informed with this history and reflection, perhaps we as a nation can illuminate the evil at large and finally kill off that demon and conclude, at last, the Civil War.
Wednesday, August 5, 2020
It is a fundamental term of the social contract that people trade allegiancefor protection. In the nineteenth century, as millions of people made their way around the world, they entangled the world in web of allegiance that had enormous political consequences. Nationality was increasingly difficult to define. Just who was a national in a world where millions lived well beyond the borders of their sovereign state? As the nineteenth century gave way to the twentieth, jurists and policymakers began to think of ways to cut the web of obligation that had enabled world politics. They proposed to modernize international law to include subjects other than the state. Many of these experiments failed. But, by the mid-twentieth century, an international legal system predicated upon absolute universality and operated by intergovernmental organizations came to the fore. Under this system, individuals gradually became subjects of international law outside of their personal citizenship, culminating with the establishment of international courts of human rights after the Second World War.
Tuesday, August 4, 2020
|Walnut Street Jail (NYPL)|
The Declaration of Independence accuses the King of having “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” But despite the seemingly natural resonance of this particular charge with the legal profession, legal scholars have displayed remarkably little interest in exploring its factual foundations. This Essay traces the colonists’ complaint to a somewhat surprising and unexpected source — a dispute about personal jurisdiction.
During the late eighteenth century, the administrative officials responsible for overseeing Britain’s North American possessions adopted an increasingly restrictive view of judicial jurisdiction, seeking to stamp out the custom of foreign attachment of nonresidents’ property that had proliferated throughout the colonies. The elected officials of North Carolina pushed back against the Crown’s efforts to deprive them of their privilege of foreign attachment by refusing the Governor’s insistence that a provision authorizing the procedure be stricken from a bill renewing authorization for the colony’s court system. The resulting impasse effectively terminated judicial authority in North Carolina and left the residents of the Colony without a fully functioning court system for more than three years. The Declaration of Independence, drafted amidst the North Carolinians’ showdown over foreign attachment, incorporated their complaint as one of the twenty-eight charges of royal abuse that the colonists claimed justified their claim to independence.
Ironically, the restrictive ethos that animated Britain’s late eighteenth-century hostility to foreign attachment and that provided the grounds for the colonists’ complaint finds echoes in the modern Supreme Court’s restrictive approach to personal jurisdiction. This Essay uses the experience of the Founding-era showdown over personal jurisdiction as a lens through which to examine modern efforts by the Court to cut back on the jurisdictional reach of state courts. Although this Essay does not propose a specific framework to replace the Court’s existing doctrine, it urges the Court to abandon its defendant-centric emphasis in favor of an approach that gives more meaningful credence to the sovereign interests of the respective states in determining the jurisdictional reach of their own courts.
Monday, August 3, 2020
Today, Americans believe that the early colonists came to the New World in search of religious liberty. What we often forget is that they wanted religious liberty for themselves, not for those who held other views that they rejected and detested. Yet, by the mid-18th century, the colonists agreed that everyone possessed a sovereign right of conscience. How did this change develop? In Beyond Belief, Beyond Conscience, Pulitzer Prize-winning author Jack Rakove tracks the unique course of religious freedom in America.--Dan Ernst
He finds that, as denominations and sects multiplied, Americans became much more tolerant of the free expression of rival religious beliefs. During the Revolutionary era, he explains, most of the new states moved to disestablish churches and to give constitutional recognition to rights of conscience. These two developments explain why religious freedom originally represented the most radical right of all. No other right placed greater importance on the moral autonomy of individuals, or better illustrated how the authority of government could be limited by denying the state authority to act. Together, these developments made possible the great revival of religion in 19th-century America.
As Rakove explains, America's intense religiosity eventually created a new set of problems for mapping the relationship between church and state. He goes on to examine some of our contemporary controversies over church and state not from the vantage point of legal doctrine, but of the deeper history that gave the U.S. its own approach to religious freedom. In this book, he tells the story of how American ideas of religious toleration and free exercise evolved over time, and why questions of church and state still vex us.
Sunday, August 2, 2020
Oliver Wendell Holmes was one of the most influential figures in American law. As a Supreme Court Justice, he wrote foundational opinions about such important constitutional issues as freedom of speech and the limits of state regulatory power. As a scholar and Massachusetts High Court judge, he helped to reshape the common law for the modern industrial era. And yet, despite the many accounts of his career, Holmes himself remains an enigma. This book is the first to explore the nineteenth-century New England influences so crucial to the formation of his character. Inspired by Ralph Waldo Emerson's transcendentalism, Holmes belonged to a group of men who formulated a philosophy known as American pragmatism that stood as an alternative to English empiricism and German rationalism. This innovative study places Holmes within the transcendentalist, pragmatist tradition and thereby unlocks his unique identity and contribution to American law. Wells' nuanced analysis will appeal to legal scholars, historians, philosophers, and general readers alike.BC Law’s notice of the book is here. A SCOTUSblog exchange between Ronald Collins to Catharine Pierce Wells is here.
Saturday, August 1, 2020
- Two new posts at Talking Legal History. Guest Host Lesa Redmond, a first year student in the Department of History at Duke University, interviews Paul Finkelman, President of Gratz College, on his recently published Defending Slavery: Proslavery Thought in the Old South, 2d ed. (Bedford/St. Martin’s, 2020). Siobhan M.M. Barco discusses Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (Cambridge University Press, 2020) with authors Alejandro de la Fuente and Ariela Gross.
- Congratulations to Annette Gordon-Reed on her University Professorship at Harvard University (Crimson; Gazette).
- Now available as a free download, Racism in America: A Reader, with a Foreword by Annette Gordon-Reed. (HUP). “At Harvard University Press, we’ve had the honor of publishing some of the most influential books on the subject. The excerpts in this volume—culled from works of history, law, sociology, medicine, economics, critical theory, philosophy, art, and literature—are an invitation to understand anti-Black racism through the eyes of our most incisive commentators.” TOC here.
- Also available as a free download, the latest issue of the journal Capitalism, including the article Capitalism when Labor was Capital: Slavery, Power, and Price in Antebellum America, by Caitlin Rosenthal.
- We've learned from Cambridge University Press that, after a Covid-19 related delay, the latest Law and History Review has been printed and will soon be mailed.
- The directors of the FDR and LBJ Libraries discuss the friendship between the two presidents on Wednesday, August 5, at 2pm on Facebook Premiere in a session entitled The New Deal to the Great Society.
- The National Constitution Center announces the opening of its exhibit The 19th Amendment: How Women Won the Vote on August 26.
- Much of interest in the latest (34:1) issue of Studies in American Political Development. Check out, for example, Paul Musgrave, “Bringing the State Police In: The Diffusion of U.S. Statewide Policing Agencies, 1905–1941.”
- Now available as an e-pub on Amazon Kindle: Law's Picture Books: The Yale Law Library Collection.
- White Supremacy and Historical Memory: Collegiate and Suburban Division. University of Chicago and Stephen A. Douglas. UNC Chapel Hill and Charles B. Aycock, Julian S. Carr and Josephus Daniels. Chevy Chase Advisory Neighborhood Commission and Francis G. Newlands.
- Cindy Ewing (University of Missouri) has won the Lynne Rienner Publishers Award for Best Dissertation (ISA) and the Oxford University Press USA Dissertation Prize in International History (SHAFR) for her 2018 dissertation (Yale), "The Asian Unity Project: Human Rights, Third World Solidarity, and the United Nations, 1945-1955."
- Fei-Hsien Wang (Indiana University) received a commendation from the Society for the History of Authorship, Reading, and Publishing's DeLong Book History Prize for Pirates and Publishers: A Social History of Copyright in Modern China. The book was featured in the International Society for Chinese Law and History's last Summer Book Talk on July 30.
- From the Washington Post's "Made by History" section: Lindsay M. Chervinsky (Institute for Thomas Paine Studies/nternational Center for Jefferson Studies), "George Washington invoked executive privilege. But he’d reject Barr’s version"; Dana Frank (University of California, Santa Cruz), "Congresswomen of color have always fought back against sexism"; and more.
Friday, July 31, 2020
A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law — defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations — imposed core duties on public officeholders: Officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Office-holding came to be viewed as conditional, with officers removable for misdeeds. This law of public office reflected something that looks similar to modern fiduciary duties of loyalty and care.--Dan Ernst
In this Essay, we extend the historical record describing this law of public office, and make several new claims — historical and theoretical. First, there are strong reasons to suspect that the law of public office and private fiduciary duties developed together and influenced each other. During the critical centuries we explore, the duties of officeholders such as trustees, executors, and corporate directors were developing alongside the duties of officials such as tax collectors and government commissioners. Parliament and other actors repeatedly used the language of trust, trusteeship, guardianship, and account to define the law of public offices. And public law concerns about abuse of power and the need for honesty, fidelity, and altruism in service of others may have seeped from public law into private fiduciary law. Influential political theory about the monarchy and lesser magistrates was also using trust and related legal language to set forth a fiduciary conception of public office-holding; the theoretical developments in political theory not only drew from legal concepts but may have helped shape them, as well.
One Essay cannot decisively establish whether the similarities in language, concept, and timing were mere coincidence or rather evidence of some conscious co-development in the law of public offices, political theory, and fiduciary law. Proving (or disproving) actual causal relationships will need to be the work of the future. We conclude with some potential implications for our research agenda, should further work continue to confirm our findings here. Fiduciary political theorists should be less anxious about drawing from private law models — and private law fiduciary theorists might need to be less insistent on the purity of the private sphere. As we show, during the critical periods when fiduciary law and the law of public office come into their own, the public-private distinction wasn’t yet creating the divide that exists today. Our research agenda invites more mutual learning — both historically and for law and institutions today.
Sir William Gooch and Law Books in Colonial Virginia, by Warren M. BillingsMike Widener, Rare Book Librarian & Lecturer in Legal Research, Lillian Goldman Law Library, Yale Law School, observes that Professor Hyland’s article uses "object-based learning techniques” and is "especially valuable for its review of instructional theory and instructional design," which goes beyond "the typical show-and-tell session." He adds:
Reflections on the monographs of David Yale QC, FBA, by Lesley Dingle
Like Sand from the Pyramids: Using Rare Books and Manuscripts to Facilitate Object-Based Learning in the Law School Classroom, by Melissa M. Hyland
Creating a Biographical Dictionary of the Justices of the Supreme Court of Pennsylvania: A Bibliographical Essay by Joel Fishman
The Mystery of Missing Marvin: Determining the Alumni Status of a Century-Old Student, by Marcus Walker
I have long advocated the use of special collections in teaching. These powerfully evocative objects engage the student's mind and senses on many levels, and make an impact that a PowerPoint presentation can never come close to. Special collections acquisitions thus become an investment in instructional technology.
Thursday, July 30, 2020
A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.--Dan Ernst
This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.
Florence E. Allen (LC)
This chapter addresses the foundational place of the histories of conquest and slavery to American property law and the property law course. It begins by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. It then shows how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled. This chapter suggests ways to correct for the tendency of traditional property law curricula to focus exclusively on English doctrines regulating relations between neighbors, rather than the unique fruits of the colonial experiment -- the land system that underpins its real estate market and its structural reliance on racial violence to produce value.--Dan Ernst
As a law student and young lawyer in the 1760s, Thomas Jefferson began writing abstracts of English common law reports. Even after abandoning his law practice, he continued to rely on his legal commonplace book to document the legal, historical, and philosophical reading that helped shape his new role as a statesman. Indeed, he made entries in the notebook in preparation for his mission to France, as president of the United States, and near the end of his life. This authoritative volume is the first to contain the complete text of Jefferson’s notebook. With more than 900 entries on such thinkers as Beccaria, Montesquieu, and Lord Kames, Jefferson’s Legal Commonplace Book is a fascinating chronicle of the evolution of Jefferson’s searching mind.Jefferson’s abstracts of common law reports, most published here for the first time, indicate his deepening commitment to whig principles and his incisive understanding of the political underpinnings of the law. As his intellectual interests and political aspirations evolved, so too did the content and composition of his notetaking.Unlike the only previous edition of Jefferson’s notebook, published in 1926, this edition features a verified text of Jefferson’s entries and full annotation, including essential information on the authors and books he documents. In addition, the volume includes a substantial introduction that places Jefferson’s text in legal, historical, and biographical context.
Wednesday, July 29, 2020
The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no state establishment of religion. Since the 1940s, the United States Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This Essay calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.--Dan Ernst
This Article first takes a closer look at Blackstone’s chapter on master and servant. Second, it examines the anti-subordination agenda of the Reconstruction Congress, which abolished involuntary servitude and engaged in structuring a free labor system—a republican system of labor—to replace the slave labor system and to bring the freedmen into parity with their former masters. Third, this Article looks at how the courts interpreted the Thirteenth Amendment’s scope in the years immediately after its enactment. This Part demonstrates that the federal courts effectively closed off the path to develop the Thirteenth Amendment as an economic right by limiting the universe of rights to consist of only those that were civil or social rights. This Part also demonstrates how state courts viewed the Thirteenth Amendment quite differently, and analogized more broadly or narrowly, depending upon whether the court was in a Northern free state or a former slave state. Northern states were more willing to see the Thirteenth Amendment as a broad charter of labor freedom, while former slave states read the Amendment so narrowly as to limit its scope to merely abolishing the technical, legal status of chattel slavery.--Dan Ernst
In the literature on political economy and historical sociology, American exceptionalism has typically been framed as a question of why American labor unions appeared so weak and so conservative compared to their European counterparts. The usual answers point to American political culture, characteristics of the working class, features of American political parties or the party system, or aspects of the American state. However, by posing the question as an inquiry into what is different about American labor, scholars have overlooked the possibility that what is exceptional about the United States may have more to do with the distinctive features of American employers rather than of its unions or its working class.See also Masters to Managers: Historical and Comparative Perspectives on American Employers, ed. Sanford M. Jacoby (Columbia University Press, 1991).
This Article attempts to fill that gap by bringing a comparative perspective to bear on an underexplored aspect of American exceptionalism: the peculiar features of American employers and the legal framework regulating firm competition in which they historically developed....
Tuesday, July 28, 2020
|William and Mary (NYPL)|
What is the nature and source of prerogative power? Where does it come from and how was it created? British constitutional law makes several assumptions in these regards, none of which have been subject to careful interrogation. Presumptively, it assumes that these powers are powers constituted in the midst of time through an amalgam of conquest, religion and community. It assumes that these kingly powers are original powers, meaning that the end for which a power is to be used is determined by the power-holder; they are not delegated powers subject to purposive limitation as are statutorily delegated powers. And it assumes that the prerogative powers exercised today are the same kingly powers exercised by Kings and Queens, time out of mind. These assumptions are the structural drivers of the arguments on both sides of the recent debate and case law surrounding the Government’s use of the prerogative of prorogation. However, as this article demonstrates, historically situated, all of these assumptions are inaccurate. The article shows how we have ignored the revolutionary implications of the Glorious Revolution in 1688; our last “historically first” constitutional event. When we interrogate this event we see that the prerogative powers exercised by the executive today are not original but delegated, and they were not constituted prior to 1688 but were formed through statutory delegation from a constituted parliamentary sovereign in 1689, the Convention Parliament. They are merely a grander form of statutory delegated powers and as such can be subject to judicial review which focuses on the use of those powers for their proper purpose. This insight renders the Supreme Court’s approach in Miller II unnecessary, and the Divisional Court’s approach untenable.--Dan Ernst
Universidad Icesi in Cali, Colombia, will hold the “X Encuentro del Instituto Colombiano de Historia del Derecho- ICHD” ( X Annual Meeting of the Colombian Institute for Legal History) on July 30th, from 2 to 7 pm, via Zoom. The access to the conference is free, previous registration here.
This past Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice of improperly delegating to administrative agencies the legislative power that Congress alone must exercise under the Vesting Clause of Article I of the Constitution. Many scholars have debated the extent of the historical or textual basis for the doctrine. Instead, this Article examines interactions between executive and legislative actors during the first congressional debates on the Impost, Tonnage, Registration, and Collection of Duties Acts. In addition to revealing Congress’s central role early on, this story shows the relevance of state and congressional district interests to the legislative agreements concerning customs laws. The rich depth of these varied interests suggests that nondelegation limitations might not be inherent in the Vesting Clause alone, but may be innate to the federal government’s tripartite and federalist structural design itself.--Dan Ernst
The Constitution carefully provided significant protection for state interests through diverse representation schemes in the House and the Senate. Beyond the textual limitation of exclusive vesting of the legislative power in Congress, separation of powers principles help ensure all people’s interests are represented in a way that would not be possible via a singular, centralized administrative entity. The acts of such administrative entities are accountable, if at all, to just one centralized elected official, not to multiple elected decisionmakers representing states and regional interests. Consequently, enforcement of relatively strict nondelegation principles may be critical to preserving the structural constitutional principle that the federal government must reflect the interests of both individual members of the electorate as well as the states and regional electoral districts.
Monday, July 27, 2020
The sixteen words in the U.S. Constitution's Eighth Amendment have their roots in England's Glorious Revolution of 1688-89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of Titus Oates and others during the reign of King James II, the Article sheds light on the origins of the language of Section 10 of the English Bill of Rights. That language became a model for similarly worded provisions in early American constitutions and declarations of rights, including the Virginia Declaration of Rights, that were linguistic forerunners of the Eighth Amendment. The U.S. Constitution's Eighth Amendment, ratified in 1791, became the law of the land more than 100 years after the Glorious Revolution, though that provision of the U.S. Bill of Rights was shaped by the Enlightenment as well as by early American understandings of English law and custom. The Article describes the seventeenth-century origins of the Eighth Amendment's prohibitions and the Enlightenment's impact on eighteenth-century thinkers, while highlighting how existing American prohibitions against excessive bail, excessive fines, and cruel and unusual punishments are now understood to bar acts inconsistent with "the evolving standards of decency that mark the progress of a maturing society." The Article concludes by outlining the implications of the Eighth Amendment's history for modern American jurisprudence. In doing so, it provides a critique of the U.S. Supreme Court's recent Eighth Amendment decision in Bucklew v. Precythe.
The Scourging of Titus Oates (NYPL)
Macon Bolling Allen, the country's first African American lawyer, was admitted to the bar in Portland, Maine in 1844. Becoming a lawyer in antebellum America did not insulate Allen from racism. He faced financial hardship, hostility from white people, even assault. This article traces his career from Portland to Boston and, later, to South Carolina and Washington, D.C., as Allen built a career as a lawyer and also became the first African American to hold a U.S. judicial office. It is the first in a two-part series recounting early civil rights episodes in Maine’s history on the occasion of the state's bicentennial.--Dan Ernst
Today, the criminal system and the civil system operate as distinct institutional settings with very different rules. But this was not always so. Indeed, prior to the 1940s, both domains operated in similar ways. This changed when federal reform created the Federal Rules of Civil and Criminal Procedure. The Article is the first to contend that federal reform, which took place within the overarching project of Jim Crow, wrote race into procedure and contributed to the construction of separate and unequal courtrooms.The new rules empowered civil litigants, virtually all of them white, to exercise agency over their case. But rules governing the criminal forum gave control over facts and law to just one party, the prosecutor. The new regime empowered the prosecutor to serve as a fiduciary to the entrenchment of prejudice, permitting him to distribute or withhold facts according to the race of the defendant. This account complicates the prevailing view that the Supreme Court intervened in the 1930s to temper Jim Crow practices in the criminal arena. While the Court's due process doctrine mitigated the ways in which states trampled the rights of black defendants, the Court also superintended the development of new rules that, in every case, rendered black defendants more vulnerable to state oppression.The Article finally observes that our state and federal procedural systems today operate pursuant to key features of this Jim Crow blueprint, and considers a legacy that still distributes burdens and benefits in racially salient ways.
Sunday, July 26, 2020
that bear on issues of race, equality and justice. As part of that vision, Boston College Law School expects to make a tenured appointment this year of an accomplished scholar with an established track record in civil rights, critical race theory, racial justice, race and law, or related fields. Applicants must possess a J.D. or equivalent degree and outstanding academic credentials. Relevant experience in private practice, government service, public service, or a judicial clerkship, or a Ph.D., is strongly preferred. Boston College is an Affirmative Action/Equal Opportunity Employer and does not discriminate on the basis of race, color, sex, age, religion, ancestry, national origin, sexual orientation, disability, veteran status, or any other classification protected under federal, state or local law. We strongly encourage women, minorities and others who would enrich the diversity of our academic community to apply. To learn more about how BC supports diversity and inclusion throughout the university please visit the Office for Institutional Diversity. Boston College, a Jesuit, Catholic university, is located in Newton, Massachusetts, just outside of Boston. Interested applicants should contact: Alfred Yen, Chair, Appointments Committee, at email@example.com. Although the search will be open until the position is filled, those interested are invited to apply by October 1 via firstname.lastname@example.org. Boston College conducts background checks as part of the hiring process.
Saturday, July 25, 2020
I’ve been writing posts here as a guest this month, mostly about my writing life - my emotional responses to writing, managing that response through my writing process, and so on. In this post I get a little more afield from the doing of writing while keeping on the theme of the emotional life of writing, tied to my being a first generation academic.
At several points while writing these posts I have written jokes or parts of jokes, often self-deprecating ones. I believe I’d edited them all out. I’ve done so because they’re not particularly funny (my oldest daughter likes to tell me “‘dad jokes’ rhymes with ‘bad jokes’ for a reason”) and because they don’t really fit with what I am trying to accomplish in these posts. At best, they are something I needed to do as a writer. Part of the task of editing is to remove things that are in a draft just for the writer’s sake, so that as much as possible what remains in a text is only there for the sake of the final piece of writing and the connection with the reader. Doing this requires being able to approximate thinking as if one is a different person; few people can do that very well, which is one of many reasons why writers need editorial readers. But I digress.
- The American Historical Association has canceled its annual meeting scheduled for Seattle from January 7–10, 2021. More.
- Annie Virginia Stephens Coker, the first Black woman to graduate from Berkeley Law. (Berkeley News).
- Research for our times: Emily Prifogle, University of Michigan Law, has brought together this compilation of online archival materials and primary sources. For when you can't go to the archives in person.
- Mary Ziegler, Florida State University Law, discusses Abortion and the Law in America over at Nursing Clio.
Friday, July 24, 2020
The trials in Shakespeare’s plays are strange. There are no lawyers or professional judges, there may be no witnesses, and the adjudicator often imposes unusual sanctions such as banishment. Most strikingly, these are almost always fake trials, manipulated by a character toward a predestined result. Two obvious explanations — that trials in Shakespeare’s day were like that, and that trials in the contemporary drama were like that — turn out to be largely incorrect. It is more persuasive to trace the strange features of Shakespeare’s trials to the various dramatic functions they fulfill, yet even this approach does not explain everything. There is one more possible explanation, which can be discovered only by reading the article.
The Bard (NYPL)
Twyne's Case, a 1602 English Star Chamber decision, is one of the most durable decisions of the American common law tradition. The case famously concerns fraudulent conveyance, which occurs when a debtor transfers some or all of his assets to a third party with the intent to "hinder, delay, or defraud" the debtor’s creditors. The case continues to provide judges with a test to evaluate when a transfer, even one made for good consideration, was done with the intent to defraud.
Edward Coke (NYPL)
The opinion, as reported by Edward Coke, is still regularly cited in US courts. However, it turns out that the the facts that Coke reported, and the embellishments that have grown up around it, are not accurate. (Teaser: the case was not about sheep.) This article uses previously unknown trial documents to retell the complex and surprising story behind Twyne's Case. In so doing, it also opens for further study the role, within the larger premodern credit economy, of transfers of title without transfers of possession—conveyances that have, since 1571, often been declared fraudulent.
Thursday, July 23, 2020
Few constitutional scholars would dispute that Carl Schmitt played a legitimating role in the downfall of the Weimar Republic, or that Albert Venn Dicey has defined the UK and other commonwealth constitutions. Why then is there no general conception of constitutional scholars as constitutional actors? It is now well established that ‘to understand how our Constitution and laws are practised, it is necessary to study and understand many more institutions in the system than simply the Judiciary’ While the focus has broadened to include a range of constitutional office holders and institutions, little has been said about the role and status of the constitutional law academy.–Dan Ernst. H/t: Legal Theory Blog
While formal constitutional recognition of constitutional scholars may be a step too far, the purpose of this paper is to explore the idea of constitutional scholars as analogous to integrity institutions. The analogy is made because of the facilitative role of the constitutional academy to ‘well-functioning constitutionalism’ and because of its constitutive role in shaping constitutions and constitutional doctrine. By conceiving of constitutional scholars as constitutional actors in this way, the paper allows us to examine the normative implications of this analogy. As a form of resistance to authoritarian populism, one implication of such an analogy could be to strengthen academic freedom and protect the integrity and independence of constitutional scholarship. Moreover, viewing constitutional scholars as constitutional actors sharpens our understanding of the ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and ‘institutional’ independence. This duty of independence may be equally important to the public standing, expert status and integrity of the constitutional law discipline in a highly politicized populist moment.
M Cherif Bassiouni was a towering figure in international law. He was personally connected to some of the most historically relevant moments of the past century: the Suez War; the Camp David Accords; the fall of Muammar el-Qaddafi in Libya and the establishment of the International Criminal Court. A true global citizen – raised in Egypt, educated in Europe and emigrated to the United States – his life cut across cultures and religions. This fascinating memoir gives an immediate and personal eye-witness account of the operation of international events during a tumultuous period.
Wednesday, July 22, 2020
I finished the heavy lifting thinking-wise on my book some time in the spring or summer of 2019, if memory serves. I did a lot of line-edits and other hard work afterward but the ideas didn’t change. I finished that work some time in the fall of 2019. When the COVID-19 pandemic really took off, I felt like I had been living with mass death for a very long time already and was emotionally exhausted. I’m sure I can’t be the only person feeling this way right now and I don’t mean to claim that the pandemic is extra hard for me. I’m just saying that I wonder if I was already depleted somewhat when the pandemic started. I’ve seen other scholars talking about this on social media but I haven’t kept notes on that; I now wish I had.
A great deal of the American constitutional order does not derive directly from, and cannot be understood solely with reference to, the text of the written Constitution. Instead, it often emerges from high-intensity conflict—what scholars have termed “constitutional hardball”—over the existence, meaning, and application of unwritten constitutional norms. In four virtual sessions, Josh Chafetz and David Pozen will lead discussions on the origins, functions, and mutability of these norms, with special attention paid to 20th- and 21st-century instances of intense constitutional conflict.
Instructors. Josh Chafetz is a professor of law at Georgetown University. In 2019-2020, he served as a member of the American Political Science Association Presidential Task Force on Congressional Reform. David Pozen is Charles Keller Beekman Professor of Law at Columbia Law School, where he teaches and writes about constitutional law, information law, and nonprofit law, among other topics.
On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement—including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.
Charles Evans Hughes (NYPL)
The Supreme Court is one decision away from bringing the administrative state to a grinding halt. Justice Gorsuch’s dissent in Gundy v. United States raises grave questions about the constitutionality of countless regulatory statutes in which Congress has delegated significant policymaking authority to the executive branch. Now that Justice Kavanaugh has signaled his general agreement with this approach, Justice Gorsuch’s dissent may soon become the majority. But history does not support Justice Gorsuch’s argument that, as an originalist matter, Congress cannot delegate significant policymaking authority.See also this.
This Article demonstrates that our Republic began with a completely different understanding of Congress’s constitutionally prescribed role. Alexander Hamilton, James Madison, and the First Congress all approved of legislation that delegated highly consequential policy decisions to the executive branch. This Article adds previously overlooked but critical historical evidence of constitutional debates leading up to these delegations, as well as the significant policies that the executive branch determined in Congress’s stead. After Alexander Hamilton proposed legislation delegating Congress’s Article I, section 8 power to “borrow Money” and “pay the Debt,” James Madison and other members of the First Congress debated this delegation and concluded that it was constitutional. The First Congress ultimately awarded President Washington and executive officers serving on the Sinking Fund Commission borrowing and payment authority that implicated financial policy decisions of the utmost importance to our national economy. The First Congress also delegated its power under the Intellectual Property Clause when it passed a bare-bones patent act that required executive officers including Thomas Jefferson to establish important substantive and procedural rules of patent law. Hamilton, Madison, and the First Congress never understood the Constitution to require that Congress decide all of the important policy questions, and the Supreme Court will create an unprecedented constitutional requirement if it requires Congress to start doing so now.
Exploring Changes in Property Law in Taiwan: The Current Condition and Issues of Research on History of Property Law in Taiwan, by Wan-Yu Chen
Retrospect and Prospect of Taiwan Historical Research of Criminal Justice in the Recent Thirty Years, by Cheng-Yu Lin
A Review on Taiwan Legal Profession Studies (1992-2017), by Chun-Ying Wu
Bad (Wo-)man Theory of Traditional Chinese Law: From the Vantage Points of Adultery and Abduction Cases in Tan-Hsin Archives, by Yun-Ru Chen
Revisit Law and Development Orthodox through the Lens of Taiwan and China’s Development Paths, by Weitseng Chen
Hidden Hands: A Legal-historical Study of Youth Labor in Taiwan, by Yen-Chi Liu
The Development of LGBT Rights in Democratic Taiwan: An Analysis from the Perspective of Law and Social Movements, by Hsiao-Wei Kuan
Tuesday, July 21, 2020
"The scholarship is intended to benefit the next generation of researchers [in the field of European Administrative History], particularly doctoral and post-doctoral students, to enable them to complete their research project in as brief a period as possible, ordinarily up to a maximum of 6 months. The scholarship is based on the usual rates for doctoral fellowships of the German Research Foundation (DFG).***"Early stage researchers from Germany and abroad are invited to apply. In accordance with the thematic and methodological spectrum covered by the JEV, the scholarship is open to all historical disciplines, provided the research project addresses an aspect of European administrative history or history of administrative law from the sixteenth to the twentieth century. The relevance of the research topic should not be restricted to a particular national context. Comparative research questions are particularly welcome. It is expected that the research results will be published."
Beginning with the Alien Friends Act of 1798, the United States passed laws in the name of national security to bar or expel foreigners based on their beliefs and associations—although these laws sometimes conflict with First Amendment protections of freedom of speech and association or contradict America’s self-image as a nation of immigrants. The government has continually used ideological exclusions and deportations of noncitizens to suppress dissent and radicalism throughout the twentieth and twenty-first centuries, from the War on Anarchy to the Cold War to the War on Terror.
In Threat of Dissent—the first social, political, and legal history of ideological exclusion and deportation in the United States—Julia Rose Kraut delves into the intricacies of major court decisions and legislation without losing sight of the people involved. We follow the cases of immigrants and foreign-born visitors, including activists, scholars, and artists such as Emma Goldman, Ernest Mandel, Carlos Fuentes, Charlie Chaplin, and John Lennon. Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King, as well as organizations, like the ACLU and PEN America, who challenged the constitutionality of ideological exclusions and deportations under the First Amendment. The Supreme Court, however, frequently interpreted restrictions under immigration law and upheld the government’s authority.
By reminding us of the legal vulnerability foreigners face on the basis of their beliefs, expressions, and associations, Kraut calls our attention to the ways that ideological exclusion and deportation reflect fears of subversion and serve as tools of political repression in the United States.
“A must-read for those who care about immigration or the First Amendment. In clear and lively prose, Kraut charts how noncitizens are doubly vulnerable under American law: treated with suspicion as strangers, and subject to expulsion based on their political beliefs. Along the way, she forces us to reckon with a deeply troubling reality: freedom of speech has not been available for everyone.”—Robert L. Tsai“I opened these pages skeptically, and then could not put them down. Threat of Dissent tells the rich and instructive history of efforts to protect America’s borders, first by legislation that excluded unwanted people, and then by legal and judicial challenges to those with unwelcome ideas and beliefs. An essential book for all concerned with US immigration policy and with the free expression of ideas inside and outside the nation.”—Alice Kessler-Harris
As England extended its authority over Bombay, Calcutta and other localities in early imperial India, law served as a medium of transfer between metropole and colony and English judges faced complex questions about the law’s relationship with its non-Christian subjects. While Hindus and Muslims were provided with authorised religious advisors at the English courts in India, Parsis remained officially excluded as a minority religious group. Judicial creativity, when faced with questions of Parsi marriage, divorce, child custody and conversion, was limited by judges’ ‘available conceptual resources’. Cases involving Jews in England from the eighteenth century proved to be uniquely relevant, as they rehearsed the fundamental challenges involved in the interaction of the Anglican establishment with non-Christian subjects. The common legal paradigm of Jews and Parsis was further manifested in the unconscious framing of outsiders in the courtroom using the metaphor of a ‘body of people’. This phrase, which appears only twenty times in the corpus of English Law Reports, reflects the physicalisation or personification of a society of individuals with a shared history, values, and political and legal framework. It expresses a judicial conception of them as distinct and unified, with the corollary negative associations of being threatening and potentially subversive. Despite their strong mercantile ties to the colonisers, Parsis thus served as the ‘Jews’ of India in the sense that they helped define and secure the majority by contradistinction, and their separateness was reinforced both explicitly and implicitly in legal encounters.
Monday, July 20, 2020
The ASLH is also delighted to announce the recipients of six small grants for graduate students. These $1,000 grants are designed to defray summer research expenses in the era of COVID. Congratulations to:
- Alexander M. Cors of Emory University, whose project is entitled, “Colonialism on the Move: Land and Legal Disputes in the Mississippi Valley, 1760-1810”
- Amanda Faulkner of Columbia University, whose project is entitled, “Making Identity in the Early Modern Dutch World”
- Elsa Hardy of Harvard University, whose project is entitled, “A Visit to the Red House: Conjugal Visitation on Parchman Farm, 1918-2016”
- Miriam F. Lipton of Oregon State University, whose project is entitled, “Bacteriophages and Antibiotics: How the Soviets and Americans Dealt with a Public Health Crisis when Faced with New Tools”
- Chao Ren of the University of Michigan, whose project is entitled, “Oily Arguments: Institutional Disputes and Native Property Rights in Colonial Burma”
- Doris Morgan Rueda of the University of Nevada, Las Vegas, whose project is entitled, “Saving The Bad Kids, Caging Los Chicos Malos: Juvenile Justice and Racialized Surveillance in the U.S.-Mexico Borderlands, 1900-1970”
In the year Robinson Crusoe (1719) is delivered to the press, Daniel Defoe publishes a magnificent pamphlet (The Anatomy of Exchange Alley: or a System of Stock-Jobbing) where he mercilessly exposes the serious embezzlement he observes on the London exchange market, throwing himself - with tones that are at times sarcastic, at times vehement - against the speculative activities of that time. Just like Robinson Crusoe's cannibals pounce on their poor victims, so the stock-jobbers devastate the market, manipulating it, and, in doing so, damage the stock exchange, the national economy, the Parliament, the Crown, and all the citizens of the Kingdom. The result is an apocalyptic vision of what, in the future, would become the most important financial market in Europe and that, in 1719, was still an infant, albeit a somewhat developed one. The text of 1719 is not a monad in Defoe's production, nor does it represent a one-off case of grievances against the vibrant speculations on the securities market, at the time allegedly perpetrated by the jobbers. In a previous libellus of 1701 - The Villainy of Stock Jobbers Detected and the Causes of the Late Run after the Bank and the Bankers Discovered and Considered - Defoe had already harshly stigmatized the conduct of London jobbers, thus becoming part of a larger literary vein of the time.
Many of the questions that Defoe raises still remain significant today; they underpin many of the policy choices that govern the regulation of stock exchanges, and, generally, of markets for financial instruments, in particular in the area of Market Abuse. Many of the situations that Defoe describes are a true anticipation, 300 years before hand, of the issues with which modern Legislation against Market Abuse is concerned: insider trading, market manipulation, appropriate disclosure of price-sensitive information. Market efficiency appears to have been right at the dawn of modern financial markets, a widely shared concern, that Defoe rightly captures in these writings.