Sunday, January 20, 2019

Job Notice: Seeking Constitutional and Legal Scholars

Our attention has just been drawn to the following posting on H-FedHist:
Seeking Constitutional and Legal Scholars.  We seek two scholars, one in U.S. constitutional and one in U.S. legal history, to help develop a timeline of federal history.  The timeline will highlight critical and formative milestones in the history of the U.S. federal government and the development of the United States, and identify essential readings. Please respond with questions and interest to the H-FedHist editor at
H/t: Jay Stewart

Citizenship, Naturalization, and Belonging: Attempting a Comparative Legal Research

In 2003 I published a book on citizenship and belonging in Spain and Spanish America.[1]  Having surveyed hundreds of conflicts in which individuals requested rights (or were forced to comply with duties) either in local communities or in the kingdom, I discovered that both litigants and those who opposed them, both local and royal authorities, both jurists and laymen, referenced a similar set of criteria. According to it, status, rather than being automatically abstracted from birth or descent, hinged upon the ability to demonstrate attachment to the community. Attachment could be demonstrated in multiple ways: local residence, marriage to a local person, owning of real estate, or paying taxes. Although a legal presumption protected those born locally to locally born parents –in their case the presumption held that they loved the community and were loyal to it— if there was reason to believe the contrary, then despite local birth to locally born parents, these individuals would be considered foreign. The same was true of those born outside to foreign parents. In their case, the presumption held that they had no love to the community. But if they could demonstrate that they did (by referencing the indications enumerated above that demonstrated integration) then they would be recognized as members.

In both Spain and Spanish America, these categories operated vis-à-vis both the local community (constituting individuals as vecinos) and the kingdom community (recognizing them as naturales). Initially, each Spanish kingdom had its own community of natives, which was distinguished from others (there were natives of Castile, natives or Aragón, and so forth). However, by the late sixteenth century, the category “natives of the kingdoms of Spain” also made its appearance. First applied in the Americas, where only “natives of Spain” could theoretically reside and undertake commercial activities, by the early eighteenth century this category was also applied in the Iberian Peninsula. Thereafter, legally, at least, there was only one community of natives in Spain and it included all Spaniards.

My aim in pursuing these questions was to write a history that would observe NOT how states and kings defined members but how residents engaged in the elaboration of a legal distinction between natives and foreigners, Spaniards and aliens. Rather than discovering what the law meant, I was after the question how historical actors used the law and how this use influenced what they said and what they did. I also wanted to re-think debates regarding citizenship. These debates affirmed the importance of medieval urban citizenship to the formation of state centered citizenship, but normally failed to explain how these processes of borrowing and extension took place. Spain and Spanish America gave an interesting answer because they demonstrate that to determine who Spaniards were people asked about their urban membership. If the literature tended to affirm that there were no citizens in monarchical territories, my wish was to showcase their importance. Methodologically, I was interested in reconstructing the legalities of the past not by referencing abstract legal doctrines, jurisprudence, or legislation, but instead by analyzing the words and behavior of a multiplicity of actors. Undertaking a task similar to the one linguists perform when they analyze speech to reconstruct the rules that govern it, I wanted to understand how contemporaries conceived of membership. Why did they think they had rights? How did they explain their refusal to allow others to enjoy them?  I was also fascinated by the need to reconstruct rules by observing conflict. I asked: what do moments of disagreement tell us about consensus? How can we learn from them what happened when people agreed?  

In chapter 8 of that book I engaged with comparative research. I asked whether if we applied the same questions and methodology to England, France, and Italy, we would reveal similarities. Because I could not carry out the same detailed archival research in my comparative examples, I decided to focus instead on examining the secondary literature.

The historians whose work I read affirmed that membership in England, France, and Italy was radically different than what I have discovered in Spain and Spanish America. Yet, as I read through their scholarship I found plenty of indications that such might not have been the case. Municipal and kingdom communities also existed in England, France, and Italy and, in most of the cases I reviewed, membership in them implied the imposition of a certain regime of privileges and duties. In all these places, obtaining status as member was contingent on behavior, which could be formally recognized by the competent authorities or implicitly acquired through prescription. Behaviors recognized as meaningful were also extremely similar: permanent residence and tax payment ranked high but so did marriage to a local or the purchase of real estate. Local birth to locally born parents could be significant on occasions, but it was mostly treated as a legal presumption, not a condition sine-qua-non. Prima-facie, England did look somewhat different because of the tying of freedom to the exercise of certain professions. Yet, in the early modern period, freedom and Continental citizenship came to be closely associated, most clearly in the ruling of common law courts. Similarly, if subjecthood in England seemed divergent when observed through the famous Calvin Case, it stopped being thus if analyzed, for example, by studying how imperial subjects negotiated status as Englishmen.[2]

I thus concluded that similarities between the Spanish, Italian, French, and English experience might have been much greater than is currently accepted and that that there was, in fact, a common European framework that operated across the continent despite the existence of local variations. As a historian of Spain, I thus wondered: Can Spanish history be normalized rather than exoticized (as it usually is)? Can it be made central to narratives of European (and legal) formation? Can we converse across national historiographies to imagine a common European past or is this attempt doomed to fail? How to overcome a tendency to highlight particularities rather than to search for what we share?

[1] Tamar Herzog. Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America. New Haven: Yale University Press, 2003; Vecinos y extranjeros. Hacerse español en la edad moderna. Madrid: Alianza Editorial, 2006; Nations, Citoyens, Immigrés dans L’Espagne et l’Amérique espagnole du XVIIIe siècle. Paris: Le Poisson Volant, 2017.
[2] On these issues, see the most recent Hannah Weiss Muller. Subjects and Sovereign: Bonds of Belonging in the Eighteenth-Century British Empire. New York: Oxford University Press, 2017 and my review, published in the William and Mary Quarterly 75 (1) (2018): 179-182. Also see Daniel J. Hulsebosch. “English Liberties Outside England. Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire.” In Lorna Hutson ed. The Oxford Handbook of English Law and Literature, 1500-1700. Oxford: Oxford University Press, 2017, 748-772.

Saturday, January 19, 2019

Weekend Roundup

  • Here’s the amicus brief filed in November 2018 in Chicago v. Whitaker, a sanctuary cities case, by legal historians at the Stanford Law School and Princeton University in defense of we explain that nationwide injunctions.  "History is a notoriously difficult subject."  H/t: Andrew Zimmerman
  •  “With interviews completed of more than 40 women law professors . . . , the Women in Legal Education Oral History Project is seeking additional subjects in order to capture the voices of the first true generation of women professors.”  H/t: Karen Sloan on
  • Harvard Law Today has posted a Q&A with Christine Desan, the Leo Gottlieb Professor of Law at Harvard Law School, on the conference, “Money as a Democratic Medium,” held at HLS on December 14 and 15, 2018.  The event challenged “a diverse group of lawyers, economists, and scholars . . . to re-examine the history of money in America, and to redefine its future.”
  • The Call for Proposals for the 134th Annual Meeting of the American Historical Association is here.  Deadline for submissions is February 15, 2019.
  • ICYMI: The Rochester Democrat & Chronicle on the landmark commercial likeness case of Abigail Roberson (on which see also Samantha Barbas's Laws of Image).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 18, 2019

Find a Co-Panelist for ASLH 2019!

The Call for Papers of the Program Committee for the next annual meeting of the American Society for Legal History, to be held in Boston on November 21-24, 2019, states in part:
Given the number and high quality of panel and other complete sessions submitted, individual papers are much less likely than full sessions to be accepted.  Would-be individual paper submitters are encouraged to connect with other scholars (through H-Law, etc.) to coordinate the submission of complete session proposals.
We here at Legal History Blog are happy to be such a matching service.  Comments to this post are open any of you with individual papers seeking like-minded presenters for a panel.  Feel free to post your paper topic and/or panel idea in a comment, with an email address or other contact information.  And please feel free to spread the word about the annual meeting.  (The conference hashtag is #ASLH2019.)  The deadline for submissions is March 15, 2019.

An Unplanned Interlude on Reading (and Writing) Recommendation Letters

In the last two weeks, I spent many hours reading applications for graduate school. As is habitual, these applications were accompanied by recommendation letters. As I was reading those, a few questions came to mind.

In my over- 20- years’ teaching in American universities, I can only recall one negative recommendation letter, which I read some 15 or 16 years ago. Authored by an elderly professor, it suggested that the applicant might seem terrific but, in reality, was not. All other letters I have read before and since were either enthusiastic or very strong, even if and when they included important cautionary remarks. Of course, I form part of this crowd. If I feel I cannot write a strong letter, I urge those requesting the letter to go elsewhere. Nonetheless, I was shocked when, recently, a student asked me outright whether my letter would be strong because if it were not, they would request someone else to write it.

Because all letters are positive, we are often reduced to reading between lines. Is “recommending” different from “enthusiastically recommending,” and from “enthusiastically and emphatically recommending,” or does this word choice correspond to individual temperament and style?  Is a work classified as “excellent” stronger than another that a different letter writer identified as “brilliant,” or is it on the inverse? 

I was quite stunned to learn, as I read these letters, that many of my colleagues are now seriously concerned about the future of history. The affirmation (verbatim) that, given the state of the field (or jobs in the field), they rarely recommend pursuing a PhD in history repeated this year in most letters authored by North-American scholars. These scholars of course suggested that they diverted from this general rule in the case of that specific candidate whom they recommended because of their excellence, yet I remained worried. I wondered whether this concern is genuine, whether it is a cliché that my colleagues use, or whether it is a rhetorical tool meant to stress the exceptionality of the student (or some, or all of the above?).

Many letters contained a clause, which can be interpreted as self-congratulatory. It includes a detailed account of the nature of the program that the candidate has completed and to which the recommender belongs. This usually entails a description of courses and requirements, but also a statement about how rigorous, how difficult, the program is or how amazing are its students. On occasions, such as in letters written by foreign scholars, the reason to include such a clause may be the need to explain how a different system operates. Nonetheless, in both such letters and in others, it also serves to stress the enormous potential of the candidate, who had endured successfully and complied with these demanding conditions. Yet, while it celebrates the accomplishment of the candidate, it also elevates the letter writer and their program. In some odd way, it congratulates, perhaps even praises, both at the same time. Logically, the implication should be that most other programs are not vigorous, and/or their students are not amazing, or else, why would the vigor of these be exceptional? 

I would not pose these questions, had I not spent much of my time, now almost year-round, writing such letters for my students, my peers, and my former mentors. As a reader, I tend to dismiss most. As a writer, I wonder: is the effort we put into them worthwhile? Is there a way to write them differently?

Siddiqi on insolvents in Bombay

Asiya Siddiqi, University of Mumbai, published Bombay's People, 1860-98: Insolvents in the City with Oxford University Press in 2018. From the publisher: 

Bombay’s People, 1860–98Caught in the web of global economic fluctuations, Bombay experienced a cataclysmic financial crisis in the 1860s. Before the crash the city’s economy was heavily dependent on the trade in cotton. By 1865 the price of cotton plummeted, and with it the fortunes of Bombay’s people. Even people not directly involved in the cotton trade were affected. Thousands declared themselves insolvent and sought the protection of the Bombay High Court. Drawing on almost twenty thousand petitions of insolvents, Asiya Siddiqi explores a crucial phase of transformations in Indian economy and society.  
Situating her study in the early colonial period of constant negotiations between local, colonial, and global relationships, Siddiqi maps patterns of income, literacy levels, and connections between religion and occupation. She not only analyses the finances of the wealthy and the powerful but also of working people, including women insolvents—a majority of whom were courtesans and dancing and singing girls. From this scrutiny is revealed the workings of the complex and dynamic financial relationships among Bombay’s people in the late nineteenth century. 
Here is the Table of Contents: 

  • 1. Business and Social Relationships in Nineteenth-Century Bombay 
  • 2. The Bigger Merchants 
  • 3. Reading the Records: Literacy and Social–Occupational Stratification 
  • 4. Religion and Occupation 
  • 5. Insolvent Women 
  • 6. Ayesha’s World: A Butcher’s Family in Nineteenth-Century Bombay 
Further information is available here.

Thursday, January 17, 2019

NHC Briefing: How Congress Reforms Itself

The National History Center has announced a briefing on How Congress Reforms Itself: Historical Perspectives on Rules Changes, Wednesday, February 6, 2019 from 10:00-11:00 am, Cannon House Office Building, Room 122:
As recent changes in the Senate's filibuster rule have shown, the rules that govern the two bodies of Congress are not fixed: they have repeatedly undergone revision and reform.  What has brought about major rules changes in the past?  How have these changes altered how Congress works?  What unintended consequences have they caused?  Leading historians of Congress will discuss these questions.
Speakers: Matthew Wasniewski, Historian, US House of Representatives; Daniel S. Holt, U.S. Senate Historical Office; John Lawrence, University of California Washington Center.  Moderator: Michele Swers, Georgetown University.

Moran on the Three Ages of the Modern American Legal Profession

Rachel F. Moran, Dean Emerita and Michael J. Connell Distinguished Professor Law, UCLA School of Law, has published The Three Ages of Modern American Lawyering and the Current Crisis in the Legal Profession and Legal Education, which is available from the website of the Santa Clara Law Review.  There is no abstract, but there is a table of contents:

I. The First Age of Modern American Lawyering: The Rise of Corporate Law and the Emergence of the University Law School
A. The Innovation of Social Trustee Professionalism: The Organized Bar’s Push for Ethical Canons and Educational Reform
B. Analytical Legal Education, Expert Professionalism, and the “Harvardization” of Law Schools
C. Legal Aid Societies and the Limited Vision of Social Trustee Professionalism

II. The Second Age of Modern American Lawyering: The Rise of the Administrative State and the Assault on Langdellian Formalism
A. The Rise of the New Deal and the Anxiety of the Organized Ba
B. Dueling Elites: Government Lawyers and the Corporate Bar
C. Legal Realism, New Deal Activism, and the Triumph of Incremental Curricular Reform

III. The Third Age of Modern American Lawyering: The Rise of Cause Lawyering and the Push for Clinical Legal Education and a Pedagogy of Diversity
A. Civil Rights: From Law-Centric Credo to Backlash from the Left and the Right
B. Legal Services: From the War on Poverty to the War on Lawyers
C. Making It Real: Cause Lawyering and the Growth of Clinical Education
D. Desegregation, Affirmative Action, and the Compromised Pedagogy of Diversity

IV. The Current Crisis: Are We Entering the Fourth Age of Modern American Lawyering?
A. A Profession Under Stress and the Prospect of a Fourth Age of Modern American Lawyering
B. The Future of Professionalism in an Uncertain World
C. The Way Forward: Deepening Our Understanding of the Symbiotic Relationship Between Social Trustee and Expert Professionalism