Tuesday, February 28, 2017

Eyer on Rational Basis Review since the '70s

Katie R. Eyer, Rutgers Law School, has posted The Canon of Rational Basis Review, which is forthcoming in the Notre Dame Law Review:
The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors — of omission, simplification and recharacterization — we have largely erased a robust history of the use of rational basis review by social movements — instead embedding a widely shared view of rational basis review as a largely empty, meaningless form of review. Even to the extent that contemporary accounts contemplate more robust versions of rational basis review, they ordinarily cabin them narrowly to theories of “animus” or so-called “rational basis with bite.”

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary Equal Protection entry-points for social movements seeking to use constitutional litigation to disrupt the status quo. Moreover, it suggests that unlike the narrowly constrained theories of robust rational basis review that predominate today, the actual history of rational basis review has included a wide diversity of more meaningful forms of review; even during eras where such review has been in tension with the Supreme Court’s formal pronouncements.

To elucidate the problems with canonical accounts of rational basis review, this Article focuses on four ways in which the contemporary constitutional canon misdescribes or distorts our understanding of the real role of rational basis review: (1) by misdescribing how contemporary social movements achieve meaningful scrutiny under the Equal Protection clause (which has, contra canonical accounts, since the 1970s virtually always been through the gateway of rational basis review); (2) by recharacterizing successful rational basis cases as only “purporting” to apply rational basis review; (3) by ignoring the vast majority of constitutional litigation, which goes on in the lower and state courts, as well as by ignoring constitutional change in the legislative and executive branches; and (4) by oversimplifying and thus narrowly cabining any acknowledgment of more meaningful forms of rational basis review.

Columbian Institute for Legal History Conference

[We are grateful to Mario Cajas, Associate Professor, Icesi University in Cali, and a  founding member of the ICHD, of the following conference, which he is helping to organize.].

The Colombian Institute of Legal History (Instituto Colombiano de Historia del Derecho -ICHD) and the University of Sabana are organizing the "7th. Conference of the Colombian Institute of Legal History." It will take place in Universidad de la Sabana (Bogotá), next March, 9th, 2017.  The program of the conference is here.

Whitman's "Hitler's American Model"

James Q. Whitman, Yale Law School, has published Hitler's American Model: The United States and the Making of Nazi Race Law, with the Princeton University Press
Nazism triumphed in Germany during the high era of Jim Crow laws in the United States. Did the American regime of racial oppression in any way inspire the Nazis? The unsettling answer is yes. In Hitler's American Model, James Whitman presents a detailed investigation of the American impact on the notorious Nuremberg Laws, the centerpiece anti-Jewish legislation of the Nazi regime. Contrary to those who have insisted that there was no meaningful connection between American and German racial repression, Whitman demonstrates that the Nazis took a real, sustained, significant, and revealing interest in American race policies.

As Whitman shows, the Nuremberg Laws were crafted in an atmosphere of considerable attention to the precedents American race laws had to offer. German praise for American practices, already found in Hitler's Mein Kampf, was continuous throughout the early 1930s, and the most radical Nazi lawyers were eager advocates of the use of American models. But while Jim Crow segregation was one aspect of American law that appealed to Nazi radicals, it was not the most consequential one. Rather, both American citizenship and antimiscegenation laws proved directly relevant to the two principal Nuremberg Laws—the Citizenship Law and the Blood Law. Whitman looks at the ultimate, ugly irony that when Nazis rejected American practices, it was sometimes not because they found them too enlightened, but too harsh.

Indelibly linking American race laws to the shaping of Nazi policies in Germany, Hitler's American Model upends understandings of America's influence on racist practices in the wider world.
Professor Whitman's post on PUP's blog is here.  Some endorsements:

"Hitler's American Model is a breathtaking excavation of America's shameful contribution to Hitler's genocidal policies. This book is a profound testament to what the past can teach us about the present and is more timely than Whitman could possibly have imagined when he began this remarkable excursion into our nation's original sin and its surprising European legacy. A brilliant page-turner."—Laurence H. Tribe, Harvard Law School

"This is a brilliant, erudite, and disturbing book. By looking at the United States through the eyes of Nazi legal theorists in the 1930s, Whitman contributes to our understanding of this darkest chapter of German legal history. Moreover, he shines a light through this unlikely lens on the worst sins of our own country's past."—Lawrence M. Friedman, author of A History of American Law

"In Hitler's American Model, Whitman tells the deeply troubling story of how Nazi lawyers drew inspiration from the American legal system. He offers a detailed and careful reading of how U.S. immigration laws and antimiscegenation legislation gave the Nazi legal establishment the sense of remaining within the boundaries of respectable jurisprudence. Filled with novel insights, this is a particularly timely book given today's political climate."--Jan T. Gross, author of Neighbors

TOC after the jump

Monday, February 27, 2017

Gaughan on Post-Watergate Campaign Finance Reform

Anthony J Gaughan, Drake University Law School, has posted The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform, which appears in the Ohio State Law Journal 77 (2016): 791-837:
This article examines the 40 year history of the post-Watergate campaign finance reforms. Since Watergate, federal campaign finance law has been based on a model of low contribution limits and unlimited expenditures. That long experience provides sufficient evidence to ask and answer a fundamental question: Are we better off today than we were before the Watergate era campaign finance reforms? The thesis of this article is that the answer to that question is no. In fact, in many respects, the current system is worse than that which prevailed before Watergate.

This article concludes that contrary to the polarizing rhetoric that surrounds the national debate over campaign finance law, the historical record indicates that both reformers and their opponents offer reasonable policy alternatives to the dysfunctional system that prevails today. For example, twentieth-century political history at the federal level and ongoing experience at the state level demonstrate that a deregulated campaign finance system does not lead inevitably or necessarily to plutocracy. At the same rate, however, Canada’s experience with expenditure caps over the last 40 years shows that robust political debate and high levels of incumbent turnover are possible even within a comprehensively regulated campaign finance environment. Thus, the historical record makes clear that either approach — comprehensive regulation or sweeping deregulation — is preferable to the hybrid campaign finance system that governs American elections today.

Stollberg-Rilinger on the Holy Roman Empire

We have another 2015 title for you: The Emperor's Old Clothes: Constitutional History and the Symbolic Language of the Holy Roman Empire. The book's author in its original German is Barbara Stollberg-Rilinger, University of Münster. It has been translated into English by Thomas Dunlap. From the press, Berghahn:
For many years, scholars struggled to write the history of the constitution and political structure of the Holy Roman Empire. This book argues that this was because the political and social order could not be understood without considering the rituals and symbols that held the Empire together. What determined the rules (and whether they were followed) depended on complex symbolic-ritual actions. By examining key moments in the political history of the Empire, the author shows that it was a vocabulary of symbols, not the actual written laws, that formed a political language indispensable in maintaining the common order.
Praise for the book:

“Given the empire’s multitude of political units, varying in size, structure, and relative position, students and scholars of early modern German history are accustomed to sorting a profusion of names, places, titles, and events. Stollberg-Rilinger makes this difficult task more bearable, not only through her writing—by stating, rather than merely suggesting, the point of each vignette—but also, more importantly, by articulating a “logic” of the empire’s great constitutional complexity, and its transformation. Her descriptions, here skillfully rendered in Dunlap’s translation, show that legal history can vividly link the ideational and the material.” –Sara Ludin

And here's the TOC:
Chapter 1. Creation and Depiction of the Empire: Worms, 1495
Chapter 2. Cleavage of the Sacral Community: Augsburg, 1530
Chapter 3. More Strife than Ever Before: Regensburg, 1653/54
Chapter 4. Parallel Worlds: Frankfurt-Regensburg-Vienna, 1764/65 
ConclusionThe Symbolic Logic of the Empire

Further information is available here

Raffield's "Art of Law in Shakespeare"

Paul Raffield, Professor of Law, University of Warwick, has just published The Art of Law in Shakespeare (Hart Publishing):
Through an examination of five plays by Shakespeare, Paul Raffield analyses the contiguous development of common law and poetic drama during the first decade of Jacobean rule. The broad premise of The Art of Law in Shakespeare is that the ‘artificial reason’ of law was a complex art form that shared the same rhetorical strategy as the plays of Shakespeare.

Common law and Shakespearean drama of this period employed various aesthetic devices to capture the imagination and the emotional attachment of their respective audiences. Common law of the Jacobean era, as spoken in the law courts, learnt at the Inns of Court and recorded in the law reports, used imagery that would have been familiar to audiences of Shakespeare's plays.  In its juridical form, English law was intrinsically dramatic, its adversarial mode of expression being founded on an agonistic model. Conversely, Shakespeare borrowed from the common law some of its most critical themes: justice, legitimacy, sovereignty, community, fairness, and (above all else) humanity.

Each chapter investigates a particular aspect of the common law, seen through the lens of a specific play by Shakespeare. Topics include the unprecedented significance of rhetorical skills to the practice and learning of common law (Love’s Labour’s Lost); the early modern treason trial as exemplar of the theatre of law (Macbeth); the art of law as the legitimate distillation of the law of nature (The Winter’s Tale); the efforts of common lawyers to create an image of nationhood from both classical and Judeo-Christian mythography (Cymbeline); and the theatrical device of the island as microcosm of the Jacobean state and the project of imperial expansion (The Tempest).

Saturday, February 25, 2017

Weekend Roundup

  • Videos prepared for Hogan Lovells' celebration of the life of E. Barrett Prettyman, Jr. last Thursday are here.  We attended and enjoyed learning about this lion of the Washington bar.
  • The Law Times has a series on the various sources of Canadian law.  A column on the common law by Philip Girard, Osgoode Hall Law School, appeared on Monday. 
  • “The Mississippi Department of Archives and History is accepting applications for the 2017 Medgar and Myrlie Evers Research Scholars Program, which supports the use of primary resources documenting the Civil Rights Movement at the state archives in Jackson.”  More.
  • We recently mentioned articles on turn-of-the-twentieth-century Jewish immigrants and the federal immigration bureaucracy.  One of the authors we mentioned, Britt P. Tevis, has posted an opinion piece on HNN.  And don't forget this paper by William Forbath, Texas Law.
  • In memoriam: George H. Gadbois, Jr., the preeminent scholar of India's judiciary, passed away on Feb.17. Here and here are two posts in his honor, from Law and Other Things.
  • We were interested to read this report of Lucy Salyer's remarks to a teach-in at the University of New Hampshire on immigration and the Trump administration.
  • T.H. Breen presents the paper "Enforcing the Revolution" to the Washington History Seminar on Monday, February 27, at 4:00.  More.
  • ICYMI: On Balkinization, Richard Primus's nonoriginalist view of an originialism conference, here and here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 24, 2017

Collings on Comparative Constitutional History

Justin Collings, Brigham Young University J. Reuben Clark Law School, What Should Comparative Constitutional History Compare? University of Illinois Law Review (2017)
Raymond Grew once observed that, ‘‘for many professional historians comparative study evokes the ambivalence of a good bourgeois toward the best wines: to appreciate them is a sign of good taste, but indulgence seems a little loose and wasteful.’’ This reluctance, Grew continued, stemmed from some of the ‘‘admirable if modest qualities’’ of professional historians- ‘caution, accuracy, unpretentiousness, and respect for the integrity of documents and for the particular.’’ But it also ‘‘reflect[ed] doubt not so much about comparison as a mode of analysis as about what it is that historians [ought to] compare.’’

Almost forty years later, some of these doubts have receded. In many fields, comparative history has flourished; in some, failure to compare has become a significant demerit. It is a good time, it would seem, for constitutional lawyers to catch the wave. But comparative history continues to have critics and questioners. In particular, the question of what to compare, and how, remains open and contested. Perhaps it always will. Even so, it seems prudent, at this early stage in our collective effort to historicize the study of comparative constitutionalism, to reflect on how historians have wrestled with methodological questions over the past half century and more, and to offer some preliminary thoughts on how the ‘‘lessons of comparative history’’ might apply to comparative studies of constitutional history.

Rady on Hungarian customary law

We missed this book by Martyn Rady, UCL, out in 2015: Customary Law in Hungary: Courts, Texts, and the Tripartitum. From Oxford University Press:
Cover for 

Customary Law in Hungary

This is the first comprehensive treatment in any language of the history of customary law in Hungary, from the thirteenth to the twentieth centuries. Hungary's customary law was described by Stephen Werboczy in 1517 in the extensive law code known as the Tripartitum. As Werboczy explained, Hungarian law derived from the interplay of Romano-canonical law, statute, written instruments, and court judgments. It was also responsive, however, to popular conceptions of the law's content and application, as communicated through the lay membership of the kingdom's courts. Publication of the Tripartitum was intended to make the law more certain by fixing it in writing. Nevertheless, its text was customized by actual use, in the same way as the statute laws of the kingdom were adjusted as a consequence of court practice and of errors in their transmission.
The reputation attaching to the Tripartitum and Hungary's insulation from the Roman Law Reception meant that the Tripartitum continued to retain authority until well into the nineteenth century. Attempts to replace it foundered and it was the principal text on which the courts and the schools relied, not only in Habsburg Hungary but also in Transylvania. Courts, nevertheless, continued to modify its provisions in the interests of rendering judgments that they deemed either to be right or in conformity with developing practices. Even after the establishment of a parliamentary form of government in the nineteenth century, a strong customary element attached to Hungarian law, which was amplified by the association of customary law with national traditions. The consequence was that Hungary maintained aspects of a customary law regime until the Communist period.
Here's the Table of Contents:

1. The Legal Landscape
2. Customary Law and the Tripartitum
3. Customary Law, Legislation, and Letters
4. Customary Law and Medieval Courts
5. King and Nobility
6. The Nobleman and His Land
7. Crime and Prosecution
8. Medieval Procedure and Judicial Decision Making
9. Early Modern Legal Institutions
10. Codification after the Tripartitum
11. Courts and the Law in the Long Eighteenth Century
12. Custom and Law in the Modern Period

Conclusion: Customary Law in Hungary

Further information is available here.

CFP: Family, Human Rights and Internationalism

[We have the following call for papers.]

The Family, Human Rights and Internationalism: Global Historical-Sociological Perspectives, 10-11 November 2017, University of Göttingen

Historical and historical-sociological research on the history of human rights discourse and law has abounded in recent years. However, it has neglected one of the key issues that informed early thinking about human rights: the family as a protected category. This conference addresses this issue by approaching it from the perspective of global historical sociology. In this way, the conference also sheds important light on the historical diffusion of cultural and legal norms on the family and sexuality. It reflects on various religious and other imaginaries of the family and considers how they emerged and spread across the globe. How have human rights law and discourse intersected with the family and sexuality? How has this connection taken shape in different historical contexts? And, how has it evolved since the nineteenth century?

The conference brings together historians and historical sociologists interested in the global development of norms and practices related to the family through international law, international institutions, migration and empires. Papers are invited that focus on these issues from a historical perspective for the nineteenth and twentieth century. They can consider various mechanisms through which norms on the family intersected with ideas about human rights, for example, through empires and their collapse; intellectuals; war; and, migration, amongst others. Papers on regions around the globe are welcome, as are contributions on relevant international bodies and individuals who have been influential in this regard.

Keynote lectures will be provided by Professor Samuel Moyn (Harvard) and Professor Sally Engle Merry (NYU).  The conference will take place at the University of Göttingen, and reasonable travel costs and accommodation will be provided for accepted presenters.

Organisers: Dr Julia Moses, Dept. of History, Univ. of Sheffield / Institute of Sociology, Univ. of Göttingen; Prof Matthias Koenig, Institute of Sociology, University of Göttingen

To apply to participate, please send a short abstract (ca. 150-300 words) to Dr Julia Moses (j.moses@sheffield.ac.uk) by 31 March 2017.

Thursday, February 23, 2017

Schwartz on "Enumerationism" in the American Constitutional Order

David S. Schwartz, University of Wisconsin Law School, has posted A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism:
The American constitutional order embodies a tension between two irreconcilable ideas. “Enumerationism” holds that federal powers are limited to those expressly enumerated in the Constitution, plus whatever implied powers are necessary and proper to execute them. What I call “capable federalism” asserts that the Constitution creates a national government fully empowered to address all national problems. Enumerationism rejects the idea that the federal government has general powers, or that it has implied powers of equal or greater dimension than those expressly listed. Capable federalism is a general power by definition, and it is fully compatible with formal recognition of implied “great” powers. Although the two theories are incompatible, our constitutional doctrine tries to harmonize them by claiming to adhere to enumerationism while evading its strictures. We find various constitutional tricks and cheats to accommodate the “structural imperative” that any federalist system must ensure that all social problems can be addressed by at least one level of government. Still, an ideological overlay of enumerationism continues to suppress any formal recognition of capable federalism.

This article argues that enumerationism is an ideology far more than it is a viable constitutional theory. Lacking a compelling claim to our constitutional fidelity as a matter of text or history, enumerationism is also lacking as a principle. Its purported logical premises — that a limited grant of power requires enumeration, and that an enumeration must always be interpreted as exclusive — are both false. The inability of enumerationism to explain implied powers undermines its logical consistency. And by requiring as an axiom that there be some regulatory gap — identifiable subjects of national regulatory concern that cannot be adequately addressed by any level of government in our federal system — enumerationism imposes social costs without a countervailing justification. Not surprisingly, our constitutional practice, over the long run from ratification to the present, has been reflective of capable federalism: some way will be found to accommodate a federal power to address national legislative problems.

Metzmeier on Emancipation by Will in Kentucky

Kurt X. Metzmeier, University of Louisville, Louis D. Brandeis School of Law, has posted Constructing Freedom: A Letter by George M. Bibb Concerning the Will of the Rev. Richard Bibb, Sr., which appears in Unbound: A Review of Legal History and Rare Books 9 (2016): 133-146:
Slavery, America’s original sin, played a pervasive role in the psyche of Kentuckians before the Civil War. No group faced more moral anguish than the state’s Christian ministers, many who also owned slaves. In the late 1830s, a Methodist minister, Richard Bibb, began to grapple with these issues. Having early settled earlier in Western Kentucky in one of the areas of the state most amenable to plantation agriculture, Bibb had owned up to a hundred slaves at times. But now he was called by his faith to free them, something he did most finally in his will, probated after his death in 1839.

His son, John B. Bibb, was named as executor but Kentucky law made the freeing of large groups of very difficult so John asked his brother, a prominent Kentucky jurist and Democratic politician for legal advice. George M. Bibb had just finished a term as a proslavery U.S. senator and was now judge of the Jefferson County Court of chancery.

Judge Bibb responded with a well-reasoned opinion letter that applied the law of wills to Kentucky's restrictive emancipation laws, laws that attempted to prevent free slaves from remaining in the state and becoming a charge on the county poor law rolls. Bibb acknowledged his opposition to his father’s pro-emancipation views but assured his brother John that his ethical duty to help advance the intentions of the testator overrode any feeling along those lines. The letter is an extraordinary example of an antebellum legal opinion letter.

The will is transcribed faithfully but footnotes are added to provide proper citations for all the authorities cited. Detailed introductory chapters describe the Bibb family, discuss the views of Rev. James Bibb, Sr., set out the law of slavery and emancipation in Kentucky, and give a thumbnail sketch of one of the freed men Andrew J. Bibb.

Positions for Doctoral Students at Max Planck

[We have the following announcement.]

Several positions are currently open for doctoral students at the Max Planck Institute for European Legal History in Frankfurt:
Further information on these positions and application deadlines are available on the Institute's website.

Rahmatian on Lord Kames

Rounding off our Commonwealth titles from 2015 is Lord Kames: Legal and Social Theorist by Andreas Rahmatian, University of Glasgow. The book re-establishes the importance of the ideas and legal philosophy of Scottish jurist and philosopher, Lord Kames. More from the publisher: 
The Scottish jurist, judge, legal historian and philosopher Henry Home (1696–1782) took the title Lord Kames when he was elevated to the bench of the Scottish Court of Session in 1752. In the 18th century, his books were influential and widely read; the educated classes and representatives of the Enlightenment in England, France and in the German states were all familiar with his aesthetic and philosophical writings. 
Andreas Rahmatian explains Kames’ conceptions of legal philosophy, including black-letter law, legal science, legal theory, legal sociology and anthropology in its early stages, setting them in the context of the Scottish Enlightenment. He looks at how Kames came to be one of the forefathers of comparative law, sociology of law, legal psychology and ‘legal science’ in its proper meaning, as opposed to ‘law’.
Praise for the book:

"Andreas Rahmatian deploys multi- and inter-disciplinary skills worthy of the polymathic Kames himself, setting him in the context of eighteenth-century law and Enlightenment but also arguing that we should pay close attention to what his writings tell us today. The result is challenging new insight on the work of a remarkable jurist." -Hector L MacQueen

Further information is available here

Wednesday, February 22, 2017

Whitman on American Inspiration for European Extremism

James Q. Whitman, Yale Law School, has an op-ed in today's Los Angeles Times, with the headline When the Nazis wrote the Nuremberg laws, they looked to racist American statutes:
The European far right sees much to admire in the United States, with political leaders such as Marine le Pen of France and Geert Wilders of the Netherlands celebrating events — such as the recent presidential election — that seem to bode well for their brand of ethno-nationalism. Is this cross-Atlantic bond unprecedented? A sharp break with the past? If it seems so, that’s only because we rarely acknowledge America’s place in the extremist vanguard — its history as a model, even, for the very worst European excesses. More.

Environmentalists, Left and Right

Michael C. Blumm, Lewis & Clark Law School, has posted The Nation's First Forester-in-Chief: The Overlooked Role of FDR and the Environment:
Douglas Brinkley, biographer of Theodore Roosevelt and his environmental legacy, has produced a sequel on his distant cousin, Franklin Delano Roosevelt (FDR). In a comprehensive eco-biography, Brinkley shows in some detail how committed an environmentalist FDR was, protecting federal lands, encouraging state conservation efforts, making wildlife protection a national priority, and dedicating the federal government to soil protection and forest replanting. Although FDR’s romance with federal dams undercuts the assertion somewhat, the Brinkley biography successfully shows that FDR has a legitimate claim to being the foremost of environmental American presidents.
And Daniel A. Farber, University of California, Berkeley School of Law, has posted The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century:
Today, we often think of conservatives as opposed to environmental regulation. Yet it has not always been so. Conservative icons like William F. Buckley and Barry Goldwater took vigorous public stands in favor of environmental protection. Ronald Reagan championed protection of wilderness when he was governor of California and oversaw the creation of the state’s pollution control agency. He shifted to an anti-regulatory stance in the early years of his presidency, but then shifted again to a more moderate position. Few people know that he personally championed the international ozone agreement and signed a law to require planning for possible climate change. Even today, there are important conservative voices advocating environmental initiatives such as a carbon tax.

This Article recovers the forgotten history of conservative environmentalism. It argues that conservative environmentalism faded largely because of external political forces, such as the influence of the fossil fuel industry. These forces may be abating, opening the door for a more vigorous debate about environmental policy within the conservative movement and in the broader public arena.

Duxbury on Lord Kilmuir

Back in 2015, LSE’s Neil Duxbury published Lord Kilmuir: A Vignette with Hart Publishing. From the press:

Media of Lord KilmuirThis short book examines the career and achievements of Lord Kilmuir (David Maxwell Fyfe), a British politician and former Lord Chancellor who is mainly remembered for some poor and unpopular decisions but who nevertheless made a considerable mark on twentieth-century legal development. After the Second World War, Kilmuir not only excelled as a fellow prosecutor with Justice Robert Jackson at Nuremberg but also played a significant role in the effort to restore European unity, particularly through his involvement in the drafting of the European Convention on Human Rights. Drawing on archival and other primary sources, this book considers Kilmuir's initiatives both at home and in Europe, and concludes by marking out his achievements as a pro-European Conservative who not only favoured the right of individual petition to a supranational, Convention-enforcing court but who also favoured Parliament legislating to replicate Convention norms in domestic law. 
Praise for the book:

“This short book goes a long way to explaining the Tory commitment to the ECHR at its inception. The case for our continued commitment to the European Court of Human Rights remains compelling. Duxbury's triumph is to explain why Kilmuir would agree.” -Sara Ibrahim

“This text is enlivened with acute asides on matters from the 'research assessment exercise' for British universities to the 'non-political' judge.” - Ross Cranston

Further information is available here

Call for Editor, Law and History Review

After over five years of exceptional service, Elizabeth Dale is stepping down as editor of the Law & History Review, which is sponsored by the American Society for Legal History and published by the Cambridge University Press. The ASLH Publications Committee invites applications for the position. Applicants should be members of the Society who are accomplished legal historians, have the intellectual range to work with manuscripts from different periods and regions in legal history, and are conversant with both law and history.  Applicants should be prepared to request release time and other departmental or institutional support.

The editor's responsibilities include soliciting manuscripts in all fields of legal history, shepherding submitted manuscripts through the peer review and editorial processes, working with the journal's print and electronic publisher Cambridge University Press, and maintaining collaborative relationships with the journal's Book Review Editors, Editorial Board and the ASLH Board of Directors. Production management is the responsibility of the Cambridge University Press. Appointment is for an initial five-year term.

Interested scholars should send an electronic version of their current c.v. and a statement of what they would like to accomplish as editor of the journal by April 15, 2017, to the Chair of the Publications Committee: Daniel Ernst, ernst@georgetown.edu. Inquiries about the position should be directed to the Chair at the same email address or by phone at 202-662-9475.

Tuesday, February 21, 2017

Lentin's "Mr. Justice McArdie"

Antony Lentin, Barrister-at-law and Senior Member, Wolfson College, Cambridge, has published Mr Justice McCardie (1869-1933)  Rebel, Reformer, and Rogue, with Cambridge Scholars Publishing:
According to the Law Journal in 1932, ‘No present-day figure on the Bench is of greater interest than Mr Justice McCardie’. A High Court Judge from 1916 to 1933, no twentieth-century judge was more conspicuous or controversial. To his critics, he was a ‘rogue judge’ whose headline-hitting pronouncements often angered his fellow judges, called down the ire of the Churches, provoked calls in Parliament for his removal and earned a public rebuke from the Prime Minister. To his admirers, he was ‘a Crusader on the Bench’, a pioneer who denounced outdated laws, strove to make the law meet the needs of modern society and boldly championed women’s causes, birth control and abortion. The Law Quarterly Review described him as ‘one of the most interesting men in the history of the English Bench.’

Metzmeier on Law Reporters in Nineteenth-Century Kentucky

New from the University Press of Kentucky: Writing the Legal Record: Law Reporters in Nineteenth-Century Kentucky, by Kurt X. Metzmeier (University of Louisville). A description from the Press:
Any student of American history knows of Washington, Jefferson, and the other statesmen who penned the documents that form the legal foundations of our nation, but many other great minds contributed to the development of the young republic’s judicial system—figures such as William Littell, Ben Monroe, and John J. Marshall. These men, some of Kentucky’s earliest law reporters, are the forgotten trailblazers who helped establish the foundation of the state’s court system.

In Writing the Legal Record: Law Reporters in Nineteenth-Century Kentucky, Kurt X. Metzmeier provides portraits of the men whose important yet understudied contributions helped create a new common law inspired by English legal traditions but fully grounded in the decisions of American judges. He profiles individuals such as James Hughes, a Revolutionary War veteran who worked as a legislator to reform confusing property laws inherited from Virginia. Also featured is George M. Bibb, a prominent U.S. senator and the secretary of the treasury under President John Tyler.

To shed light on the pioneering individuals responsible for collecting and publishing the early opinions of Kentucky’s highest court, Metzmeier reviews nearly a century of debate over politics, institutional change, human rights, and war. Embodied in the stories of these early reporters are the rich history of the Commonwealth, the essence of its legal system, and the origins of a legal print culture in America.
More information is available here.

Billings & Tarter, eds., “Esteemed Bookes of Lawe”

Just out from the University of Virginia Press is “Esteemed Bookes of Lawe” and the Legal Culture of Early Virginia, ed. Warren M. Billings and Brent Tarter:
Virginia men of law constituted one of the first learned professions in colonial America, and Virginia legal culture had an important and lasting impact on American political institutions and jurisprudence. Exploring the book collections of these Virginians therefore offers insight into the history of the book and the intellectual history of early America. It also addresses essential questions of how English culture migrated to the American colonies and was transformed into a distinctive American culture.

Focusing on the law books that colonial Virginians acquired, how they used them, and how they eventually produced a native-grown legal literature, this collection explores the law and intellectual culture of the Commonwealth and reveals the origins of a distinctively Virginian legal literature. The contributors argue that understanding the development of early Virginia legal history—as shown through these book collections—not only illuminates important aspects of Virginia’s history and culture; it also underlies a thorough understanding of colonial and revolutionary American history and culture.
Here are two endorsements:
This splendid essay collection brings to life the richness of Virginia's colonial legal culture—a necessary book for anyone interested in colonial Virginia lawyers.
Mary Sarah Bilder, Boston College Law School, author of Madison's Hand: Revising the Constitutional Convention

This is much more than a book about books. It takes the reader into the world of lawyers and statesmen in the formative years of American law. We sit by the side of George Wythe, Patrick Henry, St. George Tucker, and other eminent figures as they draw upon English law to give a distinctive shape to life and law in colonial and early republican Virginia. The respected contributors to this collection have themselves produced an ‘esteemed booke’—and, in doing so, they have enlarged our understanding of how law lies at the very base of American government and society.
A. E. Dick Howard, University of Virginia, author of The Road from Runnymede: Magna Carta and Constitutionalism in America
Update: And don’t miss the book launch:  Wednesday, March 29, 2017 from 4:00 PM to 6:00 PM (EDT), in Law Library, Room L30, University of Richmond School of Law.  RSVP.

Monday, February 20, 2017

After Runnymede: Magna Carta in the Middle Ages

Just out online in 25:2 of the William & Mary Bill of Rights Journal is the symposium After Runnymede: Revising, Reissuing, and Reinterpreting Magna Carta in the Middle Ages:

Interpretation and Re-Interpretation of a Clause: Magna Carta and the Widow’s Quarantine
Janet Loengard

The Church and Magna Carta
R. H. Helmholz

The First Century of Magna Carta: The Diffusion of Texts and Knowledge of the Charter
Paul Brand

Salvation by Statute: Magna Carta, Legislation, and the King’s Soul
Thomas J. McSweeney

The Great Charter Turned 800: Remembering Its 700th Birthday
Karl Shoemaker

Forest Eyre Justices in the Reign of Henry III (1216–1272)
Ryan Rowberry

Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England
Sarah Harlan-Haughey

Magna Carta in the Fourteenth Century: From Law to Symbol?: Reflections on the “Six Statutes”
Charles Donahue Jr.

The Legacy of Magna Carta: Law and Justice in the Fourteenth Century
Anthony Musson

Magna Carta in the Late Middle Ages: Over-Mighty Subjects, Under-Mighty Kings, and a Turn Away from Trial by Jury
David J. Seipp

Max Planck Summer Academy for Legal History, 2017

[We have the following announcement.]

Max Planck Summer Academy for Legal History 2017,  25 July - 04 August 2017.  Deadline: 31 March 2017

The Max-Planck Summer Academy for Legal History provides a selected group of highly motivated early-stage graduates, usually PhD candidates, an in-depth introduction to methods and principles of research in legal history.  The academy consists of two parts. The first part provides an introduction to the study of sources, methodological principles, as well as theoretical models and controversial research debates on basic research fields of legal history.  In the second part the participants discuss the special research theme and develop their own approach to the theme.  The course will take place at the Max Planck Institute for European Legal History in Frankfurt am Main, Germany.

Special Theme 2017: Conflict Regulation

Conflict is not just a constant challenge for the law, but also a key means of access to its history. Each society develops its own set of means of conflict regulation. The diversity ranges from different forms of dispute resolution and mediation to traditional juridical procedures at local and global level. The way conflicts are regulated reveals the normative options chosen by the parties involved in the conflict. Thus, conflicts and their regulation can provide an insight into local contingencies, traditions, as well as the pragmatic contexts and leading authorities of the law, the living law. Research projects to be presented at the Summer Academy should concentrate on historical mechanisms of conflict regulation and offer a critical reflection about the methods used for analyzing the conflicts and the way they are dealt with.

Eligibility Requirements
  • Early-stage graduates, usually PhD candidates
  • Working knowledge of English is required, German is not a prerequisite
Required documents for the application are a CV, a project summary (approx. 10 pages) and a letter of motivation.   There is no participation fee.  Accommodation will be provided by the organizers. Participants, however, will be responsible for covering their travel expenses. There will be a limited number of scholarships available.

For further information, please visit the Max Planck Summer Academy's website.  Contact: Dr. Stefanie Rüther, Max Planck Institute for European Legal History;  summeracademy@rg.mpg.de

Lawrance and Stevens, eds., "Citizenship in Question: Evidentiary Birthright and Statelessness"

New from Duke University Press: Citizenship in Question: Evidentiary Birthright and Statelessness (2017), edited by Benjamin  N. Lawrance (Rochester Institute of Technology) and Jacqueline Stevens (Northwestern University). A description from the Press:
Citizenship is often assumed to be a clear-cut issue—either one has it or one does not. However, as the contributors to Citizenship in Question demonstrate, citizenship is not self-evident; it emerges from often obscure written records and is interpreted through ambiguous and dynamic laws. In case studies that analyze the legal barriers to citizenship rights in over twenty countries, the contributors explore how states use evidentiary requirements to create and police citizenship, often based on fictions of racial, ethnic, class, and religious differences. Whether examining the United States’ deportation of its own citizens, the selective use of DNA tests and secret results in Thailand, or laws that have stripped entire populations of citizenship, the contributors emphasize the political, psychological, and personal impact of citizenship policies. Citizenship in Question incites scholars to revisit long-standing political theories and debates about nationality, free movement, and immigration premised on the assumption of clear demarcations between citizens and noncitizens.
Historical chapters include "Jus Soli and Statelessness: A Comparative Perspective from the Americas," by Polly J. Price, and "To Know a Citizen: Birthright Citizenship Documents Regimes in U.S. History," by Beatrice McKenzie.

More information is available here.

Saturday, February 18, 2017

Weekend Roundup

  • M. C. Mirow, Florida International University College of Law, has posted The History of the Florida Supreme Court, Volume 0, which appears in 2017 Florida Supreme Court Historical Society Review 12.  The “article describes the challenges to writing the history of Florida's colonial courts in the Spanish and British periods from 1513 to 1821. These courts are an important yet understudied aspect of Florida legal history.” 
  • The finalists for the $50,000 George Washington Prize, sponsored by the Gilder Lehrman Institute of American History, George Washington’s Mount Vernon, and Washington College, have been announced.  They include Annette Gordon-Reed and Peter S. Onuf, “Most Blessed of the Patriarchs”: Thomas Jefferson and the Empire of the Imagination (Liveright Publishing); and Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (Oxford University Press).
  •  Our colleague Wallace Mlyniec recently drew our attention to the death last weekend of Clinton Bamberger, who “represented John Brady in the Maryland Court of Appeals and the U.S. Supreme Court in Brady v. Maryland,” “worked tirelessly in the U.S. and South Africa to make legal services accessible to individuals and families in crisis, and was the director of the Office of Economic Opportunity’s legal services program before the creation of the Legal Services Corporation.  He also was a pioneering clinical legal educator.”  The Baltimore Sun’s obituary is here; the New York Times's is here.  An oral history interview is here.  And his papers (including those related to Brady) are in the National Equal Justice Library at the Georgetown University Law Center.
  •  From the website of the DC Circuit Historical Society: "Hogan Lovells is hosting a celebration of [the life and work of  E. Barrett Prettyman, Jr.] on February 23rd at 555 13th Street, NW, Washington, DC from 4:00 - 6:00 pm. . . .  RSVP to Angela Carter at 202-637-6926."
  • The History and Public Policy Program of the Woodrow Wilson Center: announces Sources and Methods, "a new platform that showcases fresh archival evidence and presents new insights into contemporary international history."
  • ICYMI: "11 Top Constitutional Law Experts React to White House Stephen Miller’s Rejection of 'Judicial Supremacy'” on Just Security; the University of Michigan Law School’s Civil Rights Litigation Clearinghouse has released all available documents in United States v. Fred C. Trump, Donald Trump, and Trump Management, Inc. (73-1529;  E.D.N.Y. ).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 17, 2017

Vlahoplus on Natural Born Derivative Citizenship

John Vlahoplus, an independent scholar, has posted Toward Natural Born Derivative Citizenship, which is forthcoming in volume 7 of the British Journal of American Legal Studies:
Senator Ted Cruz's campaign for the Republican presidential nomination again raised the question whether persons who receive derivative citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders and the First Congress to show that they are not natural born under the doctrinal and historical meaning of the term.

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land.

The article examines the meaning of the term "natural born" in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable theory of natural born derivative citizenship.

Official Leaks, the Reporter's Privilege, and the Law

We were quite fortunate Tuesday to attend "In re Judith Miller: National Security Privilege," an extremely timely and important reargument and panel discussion, sponsored by the Historical Society of the DC Circuit, in which the historical nature of the topic permitted judges, lawyers (including former DOJ officials), and a law professor (Columbia Law's David Pozen) to address the difficult issues raised by leaking by public officials.  A brief report of the proceedings is on the Society’s website.  A recording will soon be streaming there and on the website of the Federal Judicial Center.

Update: Could reporters be hunted down if Trump goes after leakers?

Report: Balleisen's "Fraud" in the Washington History Seminar

The History and Public Policy Program at the Woodrow Wilson Center has posted a summary of a recent meeting of the Washington History Seminar on Edward J. Balleisen’s Fraud: An American History from Barnum to Madoff (2017):
“Fraud is endemic to modern capitalism,” says Edward J. Balleisen, Vice Provost for Interdisciplinary Studies at Duke University and author of the new book Fraud: An American History from Barnum to Madoff (2017). In his talk at the Wilson Center, Professor Balleisen explored the history of American fraud, taking a broader historical perspective that is sometimes absent from other investigations. By doing so he provides a new understanding not only of how we have engaged with fraud in the past, but how we might better contain it in the future.


Kyer on Streetcar Law

More of our Commonwealth round-up from 2015, when Irwin Law published A Thirty Years' War: The Failed Public/Private Partnership that Spurred the Creation of the Toronto Transit Commission, 1891-1921 by C. Ian Kyer, RPM Technologies. From the press:
A Thirty Years’ War coverBetween 1891 and 1921, the Toronto Railway Company operated Toronto’s streetcars under a franchise granted by the City. The arrangement brought the City a modern electric streetcar system, but the relationship between the two entities was a tempestuous one, marked and marred by almost constant conflict and confrontation. Remarkably, the many court battles that resulted went to the Judicial Committee of the Privy Council on fourteen separate occasions. This book details these legal disputes, and along the way, links them to the city’s expansion and development, its municipal politics, the provincial debates over public ownership of many kinds of utilities, and the legal culture of the day, which reveals a remarkable faith in the courts. This is a fascinating historical story set in its own time and milieu, but which also has considerable contemporary relevance as Toronto — and Canada’s other major urban centres — wrestle with their modern transportation problems. It will be of interest not only to legal historians, but also to those interested in transit and municipal history, and in the correct balance between public and private ownership.
Praise for the book:

“[A] thoughtful and very timely book. . . . A Thirty Years’ War describes, in great detail, a dynamic and a political dialogue that is still so relevant today. . . . [The book] provides invaluable guidance on how to avoid pitfalls from the past. . . . [I]t flags lessons learned, as, once again, injection of private cash is being mooted as an option to renew and expand our transit system.” -Andy Byford

“To understand the evolution of cities at the end of the nineteenth century and the first two decades of the twentieth, Ian Kyer’s study of the relationship between Toronto’s councils and the City’s privately owned transportation system is essential reading. Kyer writes with authority, but with no hint of stodginess. I do not hesitate to recommend A Thirty Years’ War, not only to today’s Torontonians, but to readers across the country.” -R.B. Fleming

"Civil litigators, municipal law specialists, transportation law counsel and members of the solicitors' bar interested in the psychology of negotiating contracts to the point of brinksmanship (not to mention those, like me, interested in legal history) are invited to read this 254 page gem [ . . .] The study of an historical legal subject, when ably undertaken as in this case, serves contemporary needs and draws much needed light on present-day controversies. A Thirty Year's War may be enjoyed on many levels, but will prove valuable for advocates and for those who wish to avoid litigation." - Gilles Renaud

Further information is available here.

Tuori's "Emperor of Law"

Kaius Tuori, University of Helsinki, has published The Emperor of Law: The Emergence of Roman Imperial Adjudication, in the Oxford Studies in Roman Society & Law:
In the days of the Roman Empire, the emperor was considered not only the ruler of the state, but also its supreme legal authority, fulfilling the multiple roles of supreme court, legislator, and administrator. The Emperor of Law explores how the emperor came to assume the mantle of a judge, beginning with Augustus, the first emperor, and spanning the years leading up to Caracalla and the Severan dynasty.
While earlier studies have attempted to explain this change either through legislation or behavior, this volume undertakes a novel analysis of the gradual expansion and elaboration of the emperor's adjudication and jurisdiction: by analyzing the process through historical narratives, it argues that the emergence of imperial adjudication was a discourse that involved not only the emperors, but also petitioners who sought their rulings, lawyers who aided them, the senatorial elite, and the Roman historians and commentators who described it. Stories of emperors settling lawsuits and demonstrating their power through law, including those depicting "mad" emperors engaging in violent repressions, played an important part in creating a shared conviction that the emperor was indeed the supreme judge alongside the empirical shift in the legal and political dynamic. Imperial adjudication reflected equally the growth of imperial power during the Principate and the centrality of the emperor in public life, and constitutional legitimation was thus created through the examples of previous actions--examples that historical authors did much to shape. Aimed at readers of classics, Roman law, and ancient history, The Emperor of Law offers a fundamental reinterpretation of the much debated problem of the advent of imperial supremacy in law that illuminates the importance of narrative studies to the field of legal history.
His post, The curious tale of Roman emperors as judges, is up on OUPblog

Thursday, February 16, 2017

Red River Court Records

Readers interested in indigeneity, the North American west, and Canadian legal history will find rich primary-source material in a volume published by McGill-Queen’s University Press in 2015. The publisher calls Law, Life and Government at Red River, Volume 2, edited by the University of Manitoba’s Dale Gibson, “a new view of frontier justice in western Canada’s first major settlement through the eyes of its courts and witnesses.” 

Here’s more:  
Law, Life, and Government at Red River, Volume 2Inhabited by a diverse population of First Nations peoples, Métis, Scots, Upper and Lower Canadians, and Americans, and dominated by the commercial and governmental activities of the Hudson’s Bay Company, Red River - now Winnipeg - was a challenging settlement to oversee. This illuminating account presents the story of the unique legal and governmental system that attempted to do so and the mixed success it encountered, culminating in the 1869-70 Red River Rebellion and confederation with Canada in 1870. 
In Law, Life, and Government at Red River, Dale Gibson provides rich, revealing glimpses into the community, and its complex relations with the Hudson’s Bay: the colony’s owner, and primary employer. Volume 2 provides a complete annotated, and never-before-published transcription of testimony from Red River’s courts, presenting hundreds of vignettes of frontier life, the cases that were brought before the courts, and the ways in which the courts resolved conflicts. 
A vivid look into early settler life, Law, Life, and Government at Red River offers insights into the political, commercial, and legal circumstances that unfolded during western expansion.
Praise for the book:

“The comprehensiveness of Law, Life, and Government at Red River provides an excellent, all-in-one, legally focused discussion for researchers in the fields of legal history, Canadian history, colonial histories of the British Empire, and aboriginal law.” -Janna Promislow

"The legal perspective offers a fresh approach to a subject that historians have covered extensively. Recommended." -Choice

"In [Gibson’s work] there appear to be no prejudices or presumptions, the absence of which is a sign of both scholarship and academic discipline. Gibson's lengthy tome is sound social observance. The first volume is a retelling of Red River's history especially as it relates to law and government, including key cases. The second volume is something that has never been done: the publication of the complete official court records of the General Quarterly Court of Assiniboia from 1844 to 1872, with commentary. This volume is a catalogue of human experiences in frontier life, from the tragic to the comical." -Winnipeg Free Press

Further information is available here.

Law, Letters & Society at the University of Chicago

[We have the following announcement.]

The College at The University of Chicago invites applications for the Senior Lecturer in and Associate Director of Law, Letters, and Society. This is full-time Senior Lecturer position beginning in the autumn quarter of 2017.  This Senior Lectureship comes with a 3-year appointment.

The program in Law, Letters, and Society (LLSO) at The University of Chicago is concerned with law and legal systems, both historically and contemporaneously. The program is designed to develop the student's analytical skills to enable informed and critical examination of law broadly construed. The organizing premise of the program is that law is a tool of social organization and control, not simply an expression of will or aspiration, and that it is best understood by careful study of both rhetoric and empirical consequences of its application.

The Senior Lecturer will teach an annual four-course load in addition to administratively managing the LLSO program, advising students on BA papers and supervising honors theses in the LLSO major. Duties will include designing and teaching the courses and maintaining office hours to advise students in the major. All administrative management of the program (Student tracking, grade submission, budgeting, programmatic reporting, etc.) will fall under the purview of the Senior Lecturer and Associate Director of the LLSO.

This position requires a background in legal history.  A JD is required, PhD preferred.  Applicants with PhD in legal history need not have JD. Teaching experience at a university level is essential.

To apply for this position go to the University of Chicago Academic Careers website.  Select requisition #03241 and upload a curriculum vitae, cover letter discussing your interest and qualifications for the position, contact information for three references, and a syllabus that includes assignments, readings, and a detailed description of past taught courses.

Application deadline is April 10, 2017. Only complete applications will be considered.  

The University of Chicago is an Affirmative Action/Equal Opportunity/Disabled/Veterans Employer and does not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national or ethnic origin, age, status as an individual with a disability, protected veteran status, genetic information, or other protected classes under the law. For additional information please see the University's Notice of Nondiscrimination. Job seekers in need of a reasonable accommodation to complete the application process should call 773-702-0287 or email ACOppAdministrator@uchicago.edu with their request.  

Required Applicant Documents: Cover Letter, Curriculum Vitae, Reference Contact Info, Syllabi 

Wednesday, February 15, 2017

Legal History Miscellany

A much-belated welcome to the blogosphere to Legal History Miscellany, the joint blog of Sara M. Butler, the King George III Professor in British History at The Ohio State University; Krista Kesselring, a professor of British History at Dalhousie University; and Katherine D. (Cassie) Watson, Senior Lecturer at Oxford Brookes University.   From the blog:
The three of us work on various facets of the histories of law, crime, and justice, primarily in a British context. We might consider ourselves first and foremost social historians, historians of women and gender, or historians of medicine, but typically return time and again to using sources produced by legal processes or to the history of people’s interactions with those legal processes.  In addition to fancying an excuse to work together, we wanted a place to put interesting tales from the archives that never quite made it into regular publications, summaries of publications that do appear, reports on research in progress, and the occasional random musing that might be of interest to an audience beyond academia.

Wright, Tucker, and Binnie on War and Peace in Canada

Continuing with our Commonwealth catch-up: the University of Toronto Press published Canadian State Trials, Vol.IV in 2015. Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939 is edited by Barry Wright, Carleton University; Eric Tucker, Osgoode Hall Law School, York University; and Susan Binnie, former legal historian at the Law Society of Upper Canada.

From the press:
Canadian State Trials, Volume IVThe fourth volume in the Canadian State Trials series examines the legal issues surrounding perceived security threats and the repression of dissent from the outset of World War One through the Great Depression. War prompted the development of new government powers and raised questions about citizenship and Canadian identity, while the ensuing interwar years brought serious economic challenges and unprecedented tensions between labour and capital. 
The chapters in this edited collection, written by leading scholars in numerous fields, examine the treatment of enemy aliens, conscription and courts martial, sedition prosecutions during the war and after the Winnipeg General Strike, and the application of Criminal Code and Immigration Act laws to Communist Party leaders, On to Ottawa Trekkers, and minority groups. These historical events shed light on contemporary dilemmas: What are the limits of dissent in war, emergencies, and economic crisis? What limits should be placed on government responses to real and perceived challenges to its authority?
Praise for the book:

“An excellent continuation of the Canadian State Trials series, this volume adds considerably to our understanding of the history of state repression, class and labour relations, and the administration of justice.” -R. Blake Brown

“This volume is a superb structural analysis of how Canada’s courts were, and can be, used as state instruments of tyranny. It represents a number of fascinating and valuable questions.” -Scott Eaton

Table of Contents after the jump.

Tuesday, February 14, 2017

Frisson in the Archives (or, Opening Pandora's Box)

I’ve taken a break from blogging, but this long break illustrates a point that many first time monograph writers may not know. There is a very long break between the time that you submit everything to the press (which includes your [updated] prospectus, cv, cover letter to the editor, and the finished manuscript). If your book is part of a series, your series editor will submit a cover letter on your behalf explaining how your book enhances the scholarly conversation that the series intends to stimulate. So in short—submission is a bit more complex than hitting Send. But even when you do all that, you should brace yourself for a long period of silence. Readers of past posts will remember that I finished the chapter from hell as my sabbatical drew to a close. My series editor told me that the early summer was the optimal time to get reviewers to commit because they still had illusions about getting their own work done in the summer and reviewing manuscripts. There was some logic to this rhythm. I have only reviewed manuscripts in the fall (presumably after writers had the summer to work on them) but I was considerably more bogged down with the work of the academic semester and would have been less cranky in the summer.

But I do not want to close out my stint as a guest blogger without discussing archival frisson. Many of us hope to find untapped sources. But then if we find them, we (I at least) worry about the responsibility for interpreting that kind of evidence. Those who work on slavery in the British Atlantic are doing remarkable work in the new histories of gender, slavery and the archive that reconstruct the lives of enslaved subjects from a very thin record. Their struggle lies in interpreting the fragments and weaving together the fleeting images of enslaved women that appear in the official record.

Slavery scholars of the early modern Iberian Atlantic are blessed with an overabundance of legal records. We do not have private journals, epistolary records, newspapers or other print culture. Rather we have voluminous lawsuits, meticulously recorded inquisitorial proceedings, and carefully kept parish books. Each parochial entry gives us a brief social history of the individual and their social worlds. I painstakingly sifted through this archive for a decade—discovering nothing “new” so to speak but using these sources to craft a scholarly contribution.

Padilla libros, Editores y Libreros, Sevilla

Halfway through my sabbatical, I became aware of an uncatalogued “box.” As I understood it—these uncatalogued boxes exist-- but in well-used, combed over national archives, we do not expect to see them. It’s like “discovering” something in the National Archive at Kew or the Library of Congress. You might “discover” a box in a remote fifteenth century castle/monastery-turned-municipal archive and hope that it is something paradigm shifting. Your expectations about discovery going into that monastic space will be somewhat different than the ten-week stint at the British Library. So this is a roundabout way of saying that I did not expect to be presented with this box. When I became aware of it, I asked a trusted friend and respected Peruvian historian for advice. He whistled, expressing both sympathy and pragmatism. He recommended a very long footnote. As he pointed out, legal scholars are fond of the ridiculous and infamously long footnote (in which all scholarly diatribes and grudges are embedded) of a lengthy law review article.